Requesting a Review of the Implementation of an AMP
The following is only our interpretation of the regulations. We have endeavored
to authenticate some of our views by asking questions and receiving answers
from CNSC officials but we have been fooled before, so we advise you to make
your own enquiries.
The CNSC has updated REGDOC-3.5.2, Compliance and Enforcement: Administrative Monetary
Penalties http://news.gc.ca/web/article-en.do?mthd=tp&crtr.page=1&nid=1015799.
Specifically they have added a form that will be filled out if you request a review of an AMP. I
have put together some facts and, hopefully useful information that could help in the event
that an AMP is issued to you or your company.
The new review form is specifically designed to address section 65.14 (1) of the NSC Act.
65.14 (1) If a review is conducted by the Commission, the Commission shall determine, as the case may
be, whether the amount of the penalty for the violation was determined in accordance with the
regulations or whether the person committed the violation, or both.
The form, http://www.nuclearsafety.gc.ca/eng/pdfs/forms/request-review-administrativemonetary-penalty-eng.pdf, simply asks for the statements pertaining to section 65.14 (1). It
seems the grounds for review will involve the interpretation of the regulation if in dispute, if it
has actually been violated and or if the amount of the AMP is justified. An AMP amount is
decided using the following criteria;
(a) the compliance history of the person who committed the violation;
(b) the degree of intention or negligence on the part of the person;
(c) the harm that resulted or could have resulted from the violation;
(d) whether the person derived any competitive or economic benefit from the violation;
(e) whether the person made reasonable efforts to mitigate or reverse the violation’s
effects;
(f) whether the person provided all reasonable assistance to the Commission; and
(g) whether the person brought the violation to the attention of the Commission
The following, table1, is an excerpt from REGDOC-3.5.2 version 2 and gives weightings to
the criterion. http://www.nuclearsafety.gc.ca/eng/acts-and-regulations/regulatorydocuments/history/regdoc3-5-2.cfm
Pay particular attention to the negative numbers in the bottom 3 rows. The CNSC will give you
credit for reporting and co-operating.
Nothing that I can find allows for the assumption that if you receive and AMP that you will be
granted discloser to the documentation pertaining to how the AMP was derived, so I asked and
this is the answer I received:
“Based on experience to date, documentation filed for the record have been the Notice of Violation and
a written submission from the person who has received the AMP. Nothing precludes that person to
seek additional documents, if any. A review is to be a fair and transparent process, and the review panel
will assess all of the evidence presented for the record”.
The CNSC states that the purpose of an AMP is to promote compliance, not to punish. I would
assume then that there is some line drawn between punishment and encouragement? Can one
punish and promote at the same time? If one man can afford an AMP and one cannot, is the one
that cannot, not incurring punishment? If the intent is not to punish then the ability of the person
to pay must be taken into account I would think?
The following is from Uslegal.com
Punishment is the infliction of some kind of pain or loss upon a person for a misdeed. In
criminal law, punishment is allowed due to the wrongful intent involved in the crime. A
punishment such as incarceration seeks to give any victim involved retribution against the
offender, deter the criminal from future criminal acts, and hopefully rehabilitate the
offender. This is distinguished from civil law, which seeks to compensate the injured party
rather than punish the wrongdoer.
From REGDOC-3.5.2
As per subsection 65.02 (2) of the NSCA, the purpose of a penalty is to promote compliance and not
to punish. An AMP is one of several enforcement tools the CNSC may use. Although any violation
listed in the AMPR can be subject to an AMP, in the context of the CNSC’s approach to graduated
enforcement, other options may be preferred for effecting compliance. Not all non-compliances will
result in an AMP, nor will an AMP necessarily be the first enforcement option used in every
situation. Each recommendation for an AMP undergoes a thorough internal review.
The following section of the Act, by using the word “If” at the beginning, looks to imply that the
commission can turn down a review but it could also just be a statement of assumption based on
65.12 and subsequently 65.1 of the NSC Act, it’s a bit ambiguous so I made another inquiry and
this is the answer I received for that one:
Subsection 65.12 is quite clear – the Commission shall conduct the review.
65.14 (1) If a review is conducted by the Commission, the Commission shall determine, as the case may
be, whether the amount of the penalty for the violation was determined in accordance with the
regulations or whether the person committed the violation, or both.
65.12 (1) On receipt of a request made under section 65.1, the Commission shall conduct
the review or cause the review to be conducted by a designated officer.
(2) If the notice of violation was issued by a designated officer, the Commission shall
conduct the review.
65.1 A person who is served with a notice of violation may, within 30 days after the day on
which it is served, or within any longer period that the Commission allows, make a request to
the Commission for a review of the amount of the penalty or the facts of the violation, or both.
There is also a burden of proof in the NSC Act put on the person who issued the notice of
violation so they must also have their facts straight. They also have to take an oath, this
presumably makes them more trustworthy. I have added the definition of the balance of
probabilities for your information.
Burden of proof
65.15 If the facts of a violation are reviewed under section 65.13 or 65.14, the person who issued
the notice of violation shall establish, on a balance of probabilities, that the person named in it
committed the violation identified in it.
Balance of Probabilities Definition: Burden of proof in civil trials. The common distinction is made with
the burden of truth in a criminal trial, which is beyond a reasonable doubt. In a civil trial, one party's
case need only be more probable than the other.
Oath or affirmation of fidelity and secrecy
66. Every member, every officer and employee of the Commission and every person acting on
behalf or under the direction of the Commission shall, before acting as such, take before a
justice of the peace or a commissioner for taking affidavits the following oath or affirmation
of fidelity and secrecy:
I, .........., do solemnly swear (or affirm) that I will faithfully, truly and to the best of my
judgment, skill and ability execute and perform the duties required of me as a member (or
officer or employee or person acting on behalf or under the direction, as the case may be), of
the Canadian Nuclear Safety Commission.
I further solemnly swear (or affirm) that I will not communicate or allow to be communicated
to any person not legally entitled thereto any information relating to the affairs of the
Commission nor will I allow any such person to inspect or have access to any books or
documents belonging to or in the possession of the Commission and relating to its business.
Look out because you are in trouble if you fail to act - forget to pay your penalty or don’t
request a review. You will be considered guilty at that point. I am also assuming that if you fail
to comply you could be fined again as set out in 65.02 as per 44. (1)(u.1).
Failure to act
65.17 A person that neither pays the penalty imposed under this Act nor requests a review in
the prescribed period is considered to have committed the violation and is liable to the
penalty.
65.02 (1) Every person who contravenes or fails to comply with a provision, order, decision,
term or condition designated under paragraph 44(1)(u.1) commits a violation and is liable to
an administrative monetary penalty of an amount to be determined in accordance with the
regulations.
44. (1) The Commission may, with the approval of the Governor in Council, make regulations
(a) respecting the development, production and use of nuclear energy;
(u.1) designating as a violation that may be proceeded with in accordance with this Act
The Act also casts a wide net.
65.03 If a corporation commits a violation, any director, officer, agent or mandatary of the
corporation who directed, authorized, assented to, acquiesced in or participated in the
commission of the violation is a party to the violation and is liable to an administrative
monetary penalty of an amount to be determined in accordance with the regulations, whether
or not the corporation has been proceeded against in accordance with this Act.
The net gets even wider. I have added one legal definition of a mandatary just in case, like me,
you weren’t sure if this was you or not.
65.04 In any proceedings under this Act against a person in relation to a violation, it is sufficient
proof of the violation to establish that it was committed by an employee, or agent or mandatary,
of the person whether or not the employee, agent or mandatary is identified or proceeded
against in accordance with this Act.
MANDATARY: One who undertakes to perform a mandate.
It is the duty of a mere mandatory, it is said, to take ordinary care of the property entrusted
to him. Vide Negligence. But it has been held that he is liable only for gross negligence.
And you can’t use due diligence as a defense.
65.06 (1) A person named in a notice of violation does not have a defense by reason that the
person
(a) exercised due diligence to prevent the commission of the violation; or
(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the
person.
If you don’t like the results of your review you still have the option of going before the
commission unless the review was originally done by the commission and but even then you
could ask for a judicial review under the Federal Courts Act.
(5) Despite subsection 43(3), a determination made under this section is final and binding and, except
for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.
This excerpt is from the Federal Courts Act and may apply but you would definitely need a
lawyer.
27. (1) An appeal lies to the Federal Court of Appeal from any of the following
decisions of the Federal Court:
(d) a determination on a reference made by a federal board, commission or
other tribunal or the Attorney General of Canada.
Below are a few other questions and the answers I received that may be of interest. The questions I
asked were sent to the Secretariat at interventions@cnsc-ccsn.gc.ca and the answers received
were from:
Mr. Marc Leblanc
Commission Secretary, Commission Secretariat Canadian Nuclear Safety Commission / Government of
Canada
1.
If I was to use the new AMP review form, could I bring in other related items, new
information, that was perhaps discovered after the fact and not noted on the review request
form?
Yes, the new AMP review form was designed to assist requestors. Requests for review can take other
forms, such as a letter. Regardless of the format used, requestors can provide all the facts and evidence
that will allow the panel to make an informed decision.
2.
If an incident warranting an AMP is issued, then paid could new developments reopen the
case? Could subsequent AMP’s be applied if new facts are found or disclosed? Say injuries or
effects are more severe than first thought, or a lie is revealed? In essence is there anything
stopping the case from being reopened?
AMPs are only one of several compliance measures available to the CNSC. While we have not yet
encountered the scenario set out in your question, there is no restriction in issuing a new AMP or an
order, for example, if new facts or incidents so warrant it.
3.
If during the review new facts are discovered that make the incident seem more sever in the
eyes of the reviewer, designated official, could new or larger AMPs be applied? Is this possible?
Section 65.14 provides that the Commission, in making its determination, shall correct the amount of
the penalty if the amount was not determined in accordance with the regulations. Consequently, the
amount could be reduced or increased, based on the application of the regulations by the reviewer (the
Commission). In addition, while not addressing specifically your question, I also refer you to subsection
65.08(1) of the NSCA which provides that “Proceeding with any act or omission as a violation under this
Act precludes proceeding with it as an offence under this Act, (…)”.
Conclusion:
The Act has given us a way to appeal AMPs and make sure they are not abused or used to make
a point and as the REGDOC makes clear not as a punishment. We need to hold the CNSC
accountable and that, is just good business to do so.
In my opinion every AMP should be asked to be reviewed. The system is still young and it
should be challenged at every turn to ensure that unfair or exorbitant precedents are not
established. At the moment there have been a good number of AMPs issued, many more than
we had hoped but no more than we expected. AMPs, it seems to me, are the tool of choice now
for the CNSC, so we should expect the issuance of them to grow. Soon the numbers of AMPs
will establish a base line and if we don’t challenge them, this base line will become whatever
the CNSC decides. Once again we will have put ourselves in their back pocket. Not choosing is
choosing and this new form may be an indication of a more vigorous approach to AMPs by the
CNSC. I also think, after the exercise of writing this article that it would be a good idea to have
a lawyer present to decipher some of the legal wording with the knowledge that by challenging
AMPs we are setting a precedent and we need to fight with that in mind. I’m not sure but I
would assume that CIRSA would have a list, ambient a short one I’m sure, of legal professionals
who are known in our industry. It may very well pay in the long run to hire one of these
experienced professionals. Besides you may as well get your money’s worth, you’re paying for
it!
If you have a regulatory question that you think you would like to share you can submit it to us
and we will publish it in our Newsletter.