ARCHIVED — Vol. 147, No. 50 — December 14, 2013

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Regulations Amending the Weights and Measures Regulations (Administrative Monetary Penalties)

Statutory authority

Weights and Measures Act

Sponsoring department

Department of Industry

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue

Traditional enforcement tools such as trader education, warning letters, notices of non-compliance, seizure of devices and prosecution are not always the most effective or cost-efficient means of assuring compliance with the requirements of the Weights and Measures Act (WMA) and its Regulations. For example, judicial proceedings (prosecution), while an effective option, often result in considerable costs to the federal government and to the individual and/or corporation involved.

The Fairness at the Pumps Act provided the legislative framework for an administrative monetary penalty (AMP) system; however, it indicated that many details were to be prescribed by regulation.

Background

The Fairness at the Pumps Act, AnAct to Amend the Electricity and Gas Inspection Act and the Weights and Measures Act, was introduced by the Government of Canada in the House of Commons in April 2010 and received Royal Assent on March 23, 2011. The new legislation marked a fundamental step in a longer-term process of evolution and innovation in assuring measurement accuracy for Canadians.

Objectives

The proposed Regulations would promote fair measurement practices in trade and improve confidence in the accuracy of measurements used in commercial transactions by giving Measurement Canada an additional tool that will be less severe but nonetheless effective in promoting compliance with the Act and Regulations.

Description

To fully implement the AMP system, Measurement Canada is proposing regulations that set out the provisions of the WMA and its Regulations whose contravention may be proceeded with as a violation for which a penalty can be imposed, the method and criteria for determining penalty amounts, and the details of when and how notices of violation are to be issued and payments and requests are to be made.

Designation of provisions subject to administrative monetary penalties

The proposed Regulations add a schedule (Schedule VI) to the Weights and Measures Regulations that sets out each of the provisions of the WMA and its Regulations whose contravention may be proceeded with as a violation for the purposes of the AMP system, and indicates whether that violation is classified as minor, serious or very serious.

Determination of the penalty amount

The WMA prescribes that the maximum penalty for a violation is $2,000, subject to specific exceptions identified in the WMA.

The proposed Regulations establish a different baseline penalty for each of the three violation categories. The purpose of the categories is to associate the baseline penalty value of a violation with its level of regulatory significance.

Baseline penalties
  • (a) $250, for a minor violation;
  • (b) $500, for a serious violation; and
  • (c) $1,000, for a very serious violation.
Process for establishing penalties

For each case, determining the penalty amount begins with identifying the violation and its associated category. The penalty amount may then be adjusted by a percentage, as set out in the proposed Schedule VII to be added to the Regulations, to reflect the violator’s history of committing violations in the five-year period immediately before the day on which the current violation was committed. Both the number and seriousness of past violations are taken into account in determining the violator’s history.

Payment of the penalty

The proposed Regulations provide details on when and how to make payments. They specify that if the penalty is paid within 15 days after the provision of the notice of violation, the penalty is reduced by half. Otherwise, the full amount of the penalty must be paid within 30 days, unless a request either to enter into a compliance agreement or for a review has been made.

Compliance agreements

In instances where the penalty is $1,000 or more, the WMA permits the person named in the notice of violation to request to enter into a compliance agreement with the Minister to ensure future compliance. The proposed Regulations set out the manner of making such a request, as well as the effect of the compliance agreement on the amount of the penalty.

Review by the Minister

The WMA also allows the person named in the notice of violation to request that the Minister review the AMP (either the existence of the alleged violation or the amount of the penalty). The proposed Regulations specify how the request for review may be made.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in the administrative burden imposed on businesses.

Small business lens

The small business lens does not apply to this proposal, as there are no incremental costs imposed on small businesses.

Consultation

Consultation on an appropriate level of intervention in the marketplace has been ongoing through a trade sector review process. These consultations brought together industry representatives and associations, consumer associations, service providers as well as individual regulated parties and other government departments (both federal and provincial). Measurement Canada estimates that over 3 000 stakeholders were consulted during these sector reviews. The use of an AMP system was recommended by consensus in the majority of these sector reviews.

The results of trade sector reviews are available online at www.ic.gc.ca/eic/site/mc-mc.nsf/eng/h_lm00215.html.

Measurement Canada conducted a consultation on its regulatory proposal for AMPs, as well as on mandatory inspections (examinations) from June 20, 2011, to September 9, 2011. Approximately 1 700 stakeholders were contacted by email or telephone during this consultation.

The results of this consultation are available online at www.ic.gc.ca/eic/site/mc-mc.nsf/eng/lm04524.html.

The majority of the comments received during this consultation were positive and, in many cases, stakeholders sought clarification on issues related to the proposed changes and their implementation. Some stakeholders provided Measurement Canada with suggestions on how to improve the implementation of the proposed regulatory changes.

Rationale

The proposed Regulations would indirectly benefit the Canadian public by improving measurement accuracy as a result of the expected improvement in compliance with the WMA and its Regulations.

The AMPs would provide a cost-effective enforcement tool to promote and maintain compliance with the WMA and its Regulations. The proposed Regulations offer the advantage of an enforcement response that is less severe and quicker than prosecution and, as is the case with other “ticketing systems” (e.g. traffic violations), AMPs act as a deterrent.

There are no foreseen impacts on traders or businesses that use measuring devices that comply with the WMA and its Regulations.

It should be noted that although the contravention of any designated provision is subject to an AMP, other enforcement tools may be used for ensuring compliance.

Implementation, enforcement and service standards

The proposed Regulations do not add any new requirements; they simply create an additional system for promoting compliance with the WMA and its Regulations. Therefore, the AMP system would be integrated into Measurement Canada’s existing graduated enforcement policy.

While Measurement Canada may use an AMP system to deal with violations of the WMA and its Regulations, an AMP system is just one of the tools available to promote compliance. Other tools include trader education, warning letters, device seizures and prosecution. Which tool would be used in any instance would depend on the recommendations of the inspector and the decisions of a designated manager in accordance with Measurement Canada’s graduated enforcement policy.

In all cases of non-compliance, the response by Measurement Canada would be tailored to achieve both compliance and deterrence. AMPs would generally only be imposed in instances where other tools cannot achieve that objective.

The use of AMPs would be phased in, so as to allow Measurement Canada to build increased awareness among traders about the program. The phased-in approach would also allow time to train Measurement Canada inspectors and management and to communicate the relevant policies and procedures for implementing and using AMPs.

Contact

Gilles Vinet
Vice-President
Measurement Canada
Telephone: 613-941-8918
Email: Gilles.Vinet@ic.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to paragraph 10(1)(v) and section 22 (see footnote a) of the Weights and Measures Act (see footnote b), proposes to make the annexed Regulations Amending the Weights and Measures Regulations (Administrative Monetary Penalties).

Interested persons may make representations concerning the proposed Regulations within 45 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part Ⅰ, and the date of publication of this notice, and be addressed to Gilles Vinet, Vice-President, Program Development Directorate, Measurement Canada, Industry Canada, Standards Building, 151 Tunney’s Pasture Driveway, Ottawa, Ontario K1A 0C9 (tel.: 613-941-8918; fax: 613-952-1736; email: Gilles.Vinet@ic.gc.ca).

Ottawa, November 28, 2013

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE WEIGHTS AND MEASURES REGULATIONS (ADMINISTRATIVE MONETARY PENALTIES)

AMENDMENTS

1. The Weights and Measures Regulations (see footnote 1) are amended by adding the following after section 345:

PART VIII

ADMINISTRATIVE MONETARY PENALTIES
VIOLATIONS

346. The contravention of a provision of the Act or these Regulations set out in column 1 of Part 1 or 2, respectively, of Schedule VI may be proceeded with as a violation in accordance with sections 22.1 to 22.28 of the Act.

CLASSIFICATION

347. The violation of each provision set out in column 1 of Part 1 or 2 of Schedule VI is classified as a minor, serious or very serious violation in accordance with the classification set out in column 2.

PENALTIES

348. (1) The amount of the penalty in respect of each violation is, subject to subsection (2),

  • (a) $250, for a minor violation;
  • (b) $500, for a serious violation; and
  • (c) $1,000, for a very serious violation.

(2) The amount of the penalty is to be adjusted in accordance with the calculation set out in column 2 of Schedule VII that corresponds to the history set out in column 1 of the person who has committed the violation.

(3) For the purposes of determining a person’s history, the points set out in column 3 of Part 1 or 2 of Schedule VI are assigned for each violation of a provision set out in column 1.

349. The notice of violation is to set out that an amount equal to 50% of the penalty may be paid as complete satisfaction of the penalty if it is paid within the period referred to in subsection 351(1) and in the manner set out in the notice of violation in accordance with subsection 351(6).

COMPLIANCE AGREEMENTS

350. If the Minister enters into a compliance agreement under subsection 22.13(1) of the Act, the conditions of which include the making of expenditures by a person, the amount of the penalty set out in the notice of violation is to be reduced by an amount equal to one half of the expenditures made in fulfilment of the agreement, with a maximum reduction to nil.

PAYMENT

351. (1) For the purposes of paragraph 22.11(2)(e) of the Act, payment is to be made within 15 days after the day on which the person is provided with the notice of violation.

(2) For the purposes of subsection 22.12(1) of the Act, payment of the penalty set out in the notice of violation is to be made within 30 days after the day on which the person is provided with the notice.

(3) For the purposes of paragraph 22.13(4)(a) of the Act, payment is to be made within 15 days after the day on which the person is provided with the notice of default.

(4) For the purposes of subsection 22.14(1) of the Act, payment is to be made within 15 days after the day on which the person is provided with the Minister’s notice.

(5) For the purposes of subsection 22.15(3) of the Act, payment is to be made within 15 days after the day on which the person is provided with notice of the Minister’s decision under subsection 22.15(1) or (2) of the Act.

(6) A payment referred to in any of subsections (1) to (5) is to be made in one of the following manners, as set out in the applicable notice:

  • (a) by means of a certified cheque or money order made payable to the Receiver General for Canada and submitted to a Measurement Canada office
    • (i) by regular mail,
    • (ii) by registered mail, or
    • (iii) by courier; or
  • (b) by electronic means.
REQUESTS UNDER SUBSECTION 22.12(2) OF THE ACT

352. (1) A request under paragraph 22.12(2)(a) or (b) of the Act shall, within 30 days after the day on which the person is provided with the notice of violation, be submitted in writing to a Measurement Canada office in one of the following manners, as set out in the notice:

  • (a) in person;
  • (b) by registered mail or courier; or
  • (c) by electronic means.

(2) The request shall set out

  • (a) the notice of violation number;
  • (b) the person’s name, mailing address, email address, telephone number, facsimile number and contact person, if any;
  • (c) an indication of whether the person prefers to communicate in English or French;
  • (d) in the case of a request made under paragraph 22.12(2)(a) of the Act, a proposal detailing the corrective action that will be taken to ensure the person’s compliance with the provision to which the violation relates; and
  • (e) in the case of a request made under paragraph 22.12(2)(b) of the Act, the person’s reasons for requesting the review.

(3) The date of the request is

  • (a) the day on which it is submitted, if it is submitted in person; or
  • (b) the day on which it is sent, if it is sent by registered mail, courier or electronic means.

2. The Regulations are amended by adding, after Schedule V, the Schedules VI and VII set out in the schedule to these Regulations.

COMING INTO FORCE

3. These Regulations come into force on the day on which section 19 of the Fairness at the Pumps Act, chapter 3 of the Statutes of Canada, 2011, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

SCHEDULE
(Section 2)

SCHEDULE VI
(Sections 346 and 347 and subsection 348(3))

VIOLATIONS

PART 1
WEIGHTS AND MEASURES ACT

Item

Column 1

Provision of the Weights
and Measures Act

Column 2


Classification

Column 3


Points

1.

7

Very serious

5

2.

8(a)

Very serious

5

3.

8(b)

Very serious

5

4.

9(1)

Very serious

5

5.

15(1)

Very serious

5

6.

17(3)

Very serious

5

7.

23(a)

Serious

3

8.

23(b)

Very serious

5

9.

24(a)

Serious

3

10.

24(b)

Serious

3

11.

26(1)(a)

Minor

1

12.

26(1)(b)

Very serious

5

13.

26(1)(c)

Very serious

5

14.

26(2)

Minor

1

15.

28

Serious

3

16.

29(a)

Minor

1

17.

29(c)

Very serious

5

18.

31(3)

Very serious

5

19.

33(1)(a)

Serious

3

20.

33(1)(b)

Serious

3

21.

33(2)(a)

Serious

3

22.

33(2)(b)

Serious

3

23.

34(1)(a)

Serious

3

24.

34(1)(b)

Serious

3

PART 2
WEIGHTS AND MEASURES REGULATIONS

Item

Column 1

Provision of the Weights and
Measures Regulations

Column 2


Classification

Column 3


Points

1.

33(1)

Serious

3

2.

35.1

Serious

3

3.

38(2)

Minor

1

4.

38(3)

Minor

1

5.

39(1)

Minor

1

6.

39(2)

Minor

1

SCHEDULE VII
(Subsection 348(2))
PENALTY ADJUSTMENTS

Item

Column 1


History

Column 2

Adjustment Calculation

1.

No violations committed under the Act or these Regulations in the five-year period immediately before the day on which the current violation was committed.

Reduce penalty by 50%

2.

Sum of the points assigned for all violations committed under the Act or these Regulations in the five-year period immediately before the day on which the current violation was committed is either one or two.

Reduce penalty by 25%

3.

Sum of the points assigned for all violations committed under the Act or these Regulations in the five-year period immediately before the day on which the current violation was committed is not less than three and not more than five.

No penalty adjustment

4.

Sum of the points assigned for all violations committed under the Act or these Regulations in the five-year period immediately before the day on which the current violation was committed is not less than six and not more than eight.

Increase penalty by 25%

5.

Sum of the points assigned for all violations committed under the Act or these Regulations in the five-year period immediately before the day on which the current violation was committed is more than eight.

Increase penalty by 50%

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