The Ontario Ministry of Consumer Services (Ministry) has
proposed new administrative monetary penalties (AMPs) in connection
with 16 of the statutes that it oversees. These statutes include
the Collection Agencies Act, Consumer Protection Act,
Consumer Reporting Act, Motor Vehicle Dealers Act, Payday Loans
Act and Real Estate and Business Brokers Act.
Currently, the Ministry is seeking stakeholder input on a consultation paper (Paper) that outlines the
purpose and scope of the proposed AMPs.
Highlights of the Paper are:
Responsibility for the AMP Framework: Each
statute is overseen by either the Ministry directly or by a
regulatory administrative authority under the Ministry's
supervision. The Paper contemplates that each regulator would be
responsible for developing its own AMP policy prior to being
granted the legal authority to issue AMPs. Although each AMP policy
would need to meet established legislative criteria, and the
regulators would be encouraged to develop consistent approaches, it
is likely that there will be variation from policy to policy. The
policies will have the force of law once finalized and recognized
by the government.
Penalty Levels: The Paper proposes three
penalty levels: Level 1 for minor violations, Level 2 for more
serious violations and Level 3 for the most serious violations. The
penalty amount ranges from C$100 to C$10,000 per infraction. The
regulators would be given specific criteria, established in the
legislation, to consider when assessing the penalty level for a
particular violation. These criteria include the nature and
severity of the violation, any prior history of non-compliance,
whether the regulated party was actively working to achieve
compliance, whether the violation was intentional and whether there
was an economic gain to the regulated party from its non-compliant
Review Process: A right of appeal for an
administrative matter, such as an AMP, can only be provided by
statute. While the Paper states that a review process would be
established in the applicable legislation, it appears that the
process would be internal within the regulatory body. There is no
mention of a specific right to appeal to a court or other external
body. It is also unclear whether the review process would include a
requirement that the regulator must provide notice prior to
imposing an AMP or the reasons for its decision, or whether a
regulated party would have an opportunity to respond to the
regulator's decision before an AMP was imposed.
Name and Shame: The Paper, consistent with
typical regulatory practice, proposes that regulators will have the
power to publicize information about a regulated entity's
compliance record. Regulators would be required to publicize
information about Level 2 and 3 violations. Publication of a Level
1 violation would be at the regulator's discretion. The Paper
does not contemplate that any review process must be completed
prior to publication.
This development highlights not just the increased focus on
consumer protection issues that has certainly been a trend in 2013,
but also the continued popularity of AMPs among regulatory
authorities at all levels of government.
The Ministry is seeking comments on the Paper until December 12,
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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