BILL 16
An Act to Amend the Tobacco Tax Act
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
1 The Tobacco Tax Act, chapter T-7 of the Revised Statutes, 1973, is amended by adding after section 21.1 the following:
ADMINISTRATIVE PENALTY PROCESS
Definition of “person”
21.2 For the purposes of sections 21.3 to 21.91, “person” means a retail vendor, wholesale vendor or manufacturer.
Notice of non-compliance
21.3(1) Despite section 21.1, if the Commissioner believes, on reasonable grounds, that a person has violated or failed to comply with a provision of this Act that is listed in Column I of Schedule B, the Commissioner may issue a notice of non-compliance.
21.3(2) The Commissioner shall serve a notice of non-compliance on the person to whom it is directed
(a) in the manner in which personal service may be made under the Rules of Court, or
(b) by registered mail to the person’s latest known address.
21.3(3) Service by registered mail shall be deemed to have been effected five days after the date the notice of non-compliance is deposited in the mail.
21.3(4) The notice of non-compliance shall include the following information:
(a) the name of the person who has violated or failed to comply with a provision listed in Column I of Schedule B;
(b) the provision listed in Column I of Schedule B and the date on which the violation or failure to comply occurred;
(c) the amount of the administrative penalty that may be imposed under section 21.6; and
(d) information with respect to the person’s right to make written submissions under section 21.4.
21.3(5) A notice of non-compliance shall not be served more than one year after the Commissioner first had knowledge of the violation or failure to comply.
21.3(6) A person who receives a notice of non-compliance for the violation or failure to comply with subsection 11(1) or (2) or section 12 shall comply with the provision within 15 days after being served with the notice.
Written submissions
21.4(1) A person who receives a notice of non-compliance may submit written submissions to the Commissioner on the form provided by the Commissioner within 15 days after being served with the notice.
21.4(2) Within 30 days after receiving the written submissions, the Commissioner shall
(a) issue a notice indicating that the Commissioner is satisfied of the following:
(i) an error or omission exists with regard to the issuance of the notice of non-compliance;
(ii) an extenuating circumstance beyond the control of the person prevented compliance with the provision listed in Column I of Schedule B; or
(iii) due diligence was exercised by the person to attempt to prevent the violation or failure to comply with the provision listed in Column I of Schedule B;
(b) issue a notice extending the time period referred to in subsection 21.3(6), or
(c) impose an administrative penalty by issuing a notice of administrative penalty.
Administrative penalty and offence
21.5(1) A person subject to an administrative penalty shall not be charged with an offence in respect of the same incident that gave rise to the administrative penalty.
21.5(2) A person charged with an offence shall not be subject to an administrative penalty in respect of the same incident that gave rise to the charge.
Notice of administrative penalty
21.6(1) The Commissioner shall impose an administrative penalty by issuing a notice of administrative penalty
(a) if the person does not comply within the time period referred to in subsection 21.3(6),
(b) if the person does not submit written submissions within the time period referred to in subsection 21.4(1), or
(c) under paragraph 21.4(2)(c).
21.6(2) The Commissioner shall serve a notice of administrative penalty on the person to whom it is directed
(a) in the manner in which personal service may be made under the Rules of Court, or
(b) by registered mail to the person’s latest known address.
21.6(3) Service by registered mail shall be deemed to have been effected five days after the date the notice of administrative penalty is deposited in the mail.
21.6(4) The notice of administrative penalty shall include the following information:
(a) the name of the person required to pay the administrative penalty;
(b) the provision listed in Column I of Schedule B and the date on which the violation or failure to comply occurred;
(c) the amount of the administrative penalty;
(d) when and how the administrative penalty shall be paid; and
(e) information with respect to the person’s right to request a review of the Commissioner’s decision under section 21.7.
21.6(5) A notice of administrative penalty shall not be served more than one year after the Commissioner first had knowledge of the violation or failure to comply.
Review of administrative penalty
21.7(1) A person who receives a notice of administrative penalty may request that the Minister review the Commissioner’s decision to issue the notice by applying to the Minister on the form provided by the Minister within 15 days after being served with the notice.
21.7(2) After receiving a request for a review under subsection (1), the Minister shall conduct the review by holding a hearing to consider the matter as soon as practicable.
21.7(3) The Minister shall not make a determination with respect to a review unless he or she has given the person who received a notice of administrative penalty an opportunity to make representations in writing or in person.
21.7(4) Following the review, the Minister may uphold, vary or rescind the decision of the Commissioner.
21.7(5) A person who receives a notice of administrative penalty may appeal the decision of the Minister to a judge of The Court of Queen’s Bench of New Brunswick.
Payment of administrative penalty
21.8(1) If a person who receives a notice of administrative penalty does not apply for a review under section 21.7, the person shall pay the administrative penalty set out in the notice within 15 days after being served with the notice.
21.8(2) If a person who receives a notice of administrative penalty applies for a review under section 21.7 and the Minister confirms or varies the Commissioner’s decision, the person shall pay the administrative penalty within 15 days after the Minister makes the decision.
21.8(3) The administrative penalty shall be payable to the Minister.
21.8(4) For the purposes of this Act only, a person who pays an administrative penalty shall be deemed to have violated or failed to comply with the provision listed in Column I of Schedule B in respect of which the payment was made.
Amount of the administrative penalty
21.9 The amount of an administrative penalty is as follows:
(a) for a first violation or failure to comply with the provision listed in Column I of Schedule B, a sum equal to the minimum administrative penalty listed beside it in Column II of Schedule B;
(b) for a second violation or failure to comply with the provision listed in Column I of Schedule B, a sum equal to twice the minimum administrative penalty listed beside it in Column II of Schedule B; and
(c) for a third or subsequent violation or failure to comply with the provision listed in Column I of Schedule B, a sum equal to the maximum administrative penalty listed beside it in Column II of Schedule B.
Failure to pay administrative penalty
21.91 If a person who is required to pay an administrative penalty under subsection 21.8(1) or (2) fails to do so
(a) the Minister may suspend, revoke or refuse to issue or renew the person’s licence or permit, and
(b) the amount of the administrative penalty constitutes a debt due to the Province.
2 Schedule A of the Act is repealed and the attached Schedule A is substituted.
3 The Act is amended by adding after Schedule A the attached Schedule B.
SCHEDULE A
Column I | Column II | |
Section | Category of Offence | |
| 2(1)............... | E | |
| | 2(2)............... | E | |
| | 2(3)............... | E | |
| | 2(3.2)............... | E | |
| | 2.2(1)............... | F | |
| | 2.2(1.1)............... | F | |
| | 2.2(1.2)............... | F | |
| | 2.2(1.3)............... | F | |
| | 2.2(1.4)............... | F | |
| | 2.2(1.5)............... | F | |
| | 2.2(1.6)............... | F | |
| | 3............... | E | |
| | 4............... | C | |
| | 6............... | C | |
| | 11(1)............... | C | |
| | 11(2)............... | C | |
| | 12............... | C | |
| | 13............... | F | |
| | 18.1(1)............... | B | |
SCHEDULE B
Column I | Column II | |
Section | Minimum and
maximum amounts of
the administrative penalty | |
| 2(1)............... | $240-$5,200 | |
| | 2(2)............... | $240-$5,200 | |
| | 2(3)............... | $240-$5,200 | |
| | 2(3.2)............... | $240-$5,200 | |
| | 2.2(1.3)............... | $240-$10,200 | |
| | 2.2(1.4)............... | $240-$10,200 | |
| | 2.2(1.5)............... | $240-$10,200 | |
| | 11(1)............... | $140-$1,100 | |
| | 11(2)............... | $140-$1,100 | |
| | 12............... | $140-$1,100 | |