priority for TC legal counsel. For
Refuse to pay the fine and
importation. However, denying
example, it was eventually discovered
continue to manufacture or
importation requires collaboration
that during the 1990s and early
import non-complying vehicles,
with, and the discretion of, Canada
2000s only one court case out of approximately twelve, most of which were successful, was registered in case law. Therefore, the implementation of AMPs might provide another interim option for TC enforcement officers if the enforcement is left to the discretion of the enforcement officer. Based on the factors to assess the severity of a violation, AMPs may also provide a more predictable penalty system and an unyielding pathway to prosecution without interference of internal legal counsel.
3.
4.
Pay the fine and take corrective measures,
5.
Prolong things through an appeal tribunal.
The Canadian RIAS, Part I, a process similar to the NHTSA notice of proposed rule-making (NPRM), blatantly omits the recourse TC would have against a company who does not conform in response to the issuance of a monetary penalty. It might be considered that a company would refuse to pay if the reason for the fine is refusal to comply. Where a company’s response to a TC monetary
DESCRIPTION OF FACTORS FOR ASSESSING THE SEVERITY OF A VIOLATION Harm or Risk
The harm or risk posed by the non-compliance
Degree of Negligence or Deliberateness
How negligent was the company or person? Was the non-
Compliance History Mitigation of Harm Cooperation with TC Detective of Contravention
compliance deliberate or accidental? Whether the non-compliance caused the company to benefit financially, or derive a competitive advantage
Border Services Agency (Customs). TC has also been known to collaborate with NHTSA to take action against a U.S. manufacturer who is shipping non-compliant vehicles to Canada, but this is also at the discretion of NHTSA. Another enforcement tool TC utilizes is collaboration with the provinces. The provinces in Canada have an outdated mandate for manufacturers to apply the federal national safety mark (NSM), but provinces do not consider federal standards a priority. Revoking an NSM may also serve as a deterrent in some cases, but TC’s legal authority for NSM cancellation is debatable. The aforementioned enforcement methods are some tools TC uses to avoid prosecuting companies. However, the only enforcement powers afforded to TC under the Motor Vehicle Safety Act are through seizure, entering a facility without a warrant, and prosecution. All other tools are just support that TC
How the company or person acted to mitigate the risks once the
solicits from other jurisdictions. It
issue was detected
has also been proven that if these
The level of cooperation with Transport Canada in relation to the
satellite jurisdictions see that TC is
non-compliance Whether the company or person reported the non-compliance, if it was discovered jointly, or discovered by TC alone
too dependent on them and is not doing its own part by using its own enforcement powers under the Act, the collaborating jurisdictions may take TC less seriously.
Where a TC enforcement officer
fine is refusal to pay, that takes TC
Therefore, assuming the enforcement
issues a company a fine the company
back to the only real power it has –
officer must be on the company’s
will have to decide on its options:
to seize vehicles and/or lay charges
premises to issue a fine, the
1.
under the Act. Therefore, AMPs could
officer would have simultaneously
be just another link in the chain to
opportunity to detain (seize) vehicles.
delay inevitable prosecution.
Otherwise, there may not be enough
It might appear that TC has other
incentive for the company to pay the
Refuse to pay the fine and take corrective measures,
2.
Pay the fine and continue to manufacture or import noncomplying vehicles,
peripheral powers, such as denying
fine and take corrective measures,
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