Fertilizers Act

An Act respecting fertilizers and supplements Short title This Act may be cited as the Fertilizers Act. Definitions In this Act, analyst means a person designated as an analyst pursuant to section 6; (analyste) conveyance means a vessel, aircraft, train, motor vehicle, trailer or other means of transportation, including a cargo container; (véhicule) document means anything on which information that is capable of being understood by a person, or read by a computer or other device, is recorded or marked; (document) environment means the components of the Earth and includes air, land and water, all layers of the atmosphere, all organic and inorganic matter and living organisms, and the interacting natural systems that include components referred to in paragraphs (a) to (c); (environnement) establishment means any place, including a conveyance, where a fertilizer or supplement is manufactured, stored, packaged or labelled; (établissement) fertilizer means any substance or mixture of substances, containing nitrogen, phosphorus, potassium or other plant food, manufactured, sold or represented for use as a plant nutrient; (engrais) inspector means a person designated as an inspector pursuant to section 6; (inspecteur) item to which this Act applies means a fertilizer or supplement, anything used in an activity regulated under this Act, and a document that is related to a fertilizer or supplement or to any activity regulated under this Act; (chose visée par la présente loi) label includes any legend, word, mark, symbol or design applied or attached to, included in, belonging to or accompanying any fertilizer, supplement or package; (étiquette) Minister means the Minister of Agriculture and Agri-Food; (ministre) package includes a sack, bag, barrel, case or any other container in which fertilizers or supplements are placed or packed; (emballage) penalty means an administrative monetary penalty imposed under the Agriculture and Agri-Food Administrative Monetary Penalties Act for a violation; (sanction) prescribed means prescribed by regulation; (Version anglaise seulement) sell includes sell, offer for sale, expose for sale, have in possession for sale and distribute; (vente) supplement means any substance or mixture of substances, other than a fertilizer, that is manufactured, sold or represented for use in the improvement of the physical condition of soils or to aid plant growth or crop yields; (supplément) Tribunal means the Review Tribunal continued by subsection 27(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act; (Commission) violation means any contravention of this Act or the regulations that may be proceeded with in accordance with the Agriculture and Agri-Food Administrative Monetary Penalties Act. (violation) Absence of registration, etc. No person shall sell, or import into Canada, any fertilizer or supplement unless the fertilizer or supplement has, in accordance with the regulations, been approved by the Minister or registered; conforms to prescribed standards; and is packaged and labelled in accordance with the regulations. Fertilizers and supplements presenting risk of harm No person shall manufacture, sell, import or export in contravention of the regulations any fertilizer or supplement that presents a risk of harm to human, animal or plant health or the environment. Prescribed activity with licence or registration No person shall conduct a prescribed activity in respect of a prescribed fertilizer or supplement that has been imported for sale — or that is to be exported or to be sent or conveyed from one province to another — unless the person is authorized to do so by a registration made under subsection 5.2(1), by a licence issued under that subsection or by both such a registration and licence, as provided for in the regulations. Prescribed activity in registered establishment No person shall conduct a prescribed activity in respect of a prescribed fertilizer or supplement that has been imported for sale — or that is to be exported or to be sent or conveyed from one province to another — unless the activity is conducted in an establishment registered under subsection 5.3(1) in accordance with the regulations. Recall order — Canadian Food Inspection Agency Act No person shall sell a fertilizer or supplement that is the subject of a recall order referred to in subsection 19(1) of the Canadian Food Inspection Agency Act. Destructive ingredients or harmful properties No person shall sell any fertilizer or supplement that contains destructive ingredients or properties harmful to plant growth when used according to the directions that accompany the fertilizer or supplement or that appear on the label of the package in which the fertilizer or supplement is contained. Regulations The Governor in Council may make regulations respecting applications for registration or for approval of fertilizers or supplements and the information to be furnished with the applications; respecting the registration of fertilizers and supplements and prescribing fees for registration; respecting the approval of fertilizers and supplements; respecting the duration and cancellation of the registration or approval of fertilizers and supplements; respecting the manufacturing, sale, importation or exportation of any fertilizer or supplement that presents a risk of harm to human, animal or plant health or the environment; respecting the sending or conveying from one province to another or the importation or exportation of any fertilizer or supplement; respecting the manufacturing or sale of any fertilizer or supplement that is to be exported or to be sent or conveyed from one province to another; respecting the sale of any fertilizer or supplement that has been imported; exempting, with or without conditions, any item to which this Act applies, or a person or activity in respect of a fertilizer or supplement, from the application of this Act or the regulations or a provision of this Act or the regulations; prescribing the form, composition and other standards for fertilizers and supplements; respecting the packaging of fertilizers and supplements and the labelling of packages thereof; respecting the evaluation of a fertilizer or supplement, including regulations respecting the provision of samples of the fertilizer or supplement, the provision of information in respect of the fertilizer or supplement, including information that permits the fertilizer or supplement to be distinguished from other fertilizers or supplements, and is required for evaluating the potential impact of the fertilizer or supplement on, and the risk of harm posed by the fertilizer or supplement to, human, animal or plant health or the environment, and the evaluation of the potential impact of the fertilizer or supplement on, and the risk of harm posed by the fertilizer or supplement to, human, animal or plant health or the environment; respecting the taking of samples and the making of analyses for the purposes of this Act; requiring persons to take or keep samples of any fertilizer or supplement, or its package or label, and to provide the Minister or an inspector with, or with access to, those samples, and respecting the manner in which those samples are to be taken or kept and the manner in which they are to be provided or access to them is to be provided; providing that fertilizers registered under this Act and containing a pest control product as defined in subsection 2(1) of the Pest Control Products Act are, in prescribed circumstances and subject to prescribed conditions, deemed to be registered under that Act; respecting the registration of persons or the issuing of licences to persons under section 5.2 or the registration of establishments under section 5.3, the suspension, cancellation and renewal of those licences and registrations, and the amendment of those licences and registrations or of any of the conditions to which they are subject by reason of subsection 5.2(3) or 5.3(4); respecting quality management programs, quality control programs, safety programs, preventive control plans or any other similar programs or plans to be implemented by persons who conduct any activity regulated under this Act; respecting the detention, preservation and safeguarding of anything seized under section 9; respecting the disposition of anything forfeited under section 9; requiring persons to prepare, keep or maintain documents and to provide the Minister or an inspector with, or with access to, those documents, and respecting the information in those documents, the manner in which they are to be prepared, kept or maintained, the place where they are to be kept or maintained, and the manner in which they are to be provided or access to them is to be provided; respecting the issuance of certificates or other documents for the purpose of section 5.5; prescribing anything else that by this Act is required to be prescribed; and generally, for carrying out the purposes and provisions of this Act. Paragraphs (1)(c.1) and (c.2) Regulations made under paragraph (1)(c.1) or (c.2) may, among other things, establish preclearance or in-transit requirements for any imported fertilizer or supplement or anything imported with it. Paragraph (1)(j.1) Regulations made under paragraph (1)(j.1) may, among other things, require persons who conduct any activity regulated under this Act and who become aware that a fertilizer or supplement presents a risk of harm to human, animal or plant health or the environment or does not meet the requirements of the regulations to provide written notice to that effect to the Minister or an inspector. Regulations — international agreements Without limiting the authority conferred by subsection (1), the Governor in Council may make any regulations the Governor in Council considers necessary for the purpose of implementing, in relation to fertilizers or supplements, any of the following provisions: Article 20.45 of the Canada–United States–Mexico Agreement; paragraph 3 of Article 39 of the Agreement on Trade-related Aspects of Intellectual Property Rights set out in Annex 1C to the WTO Agreement; or Article 18.47 of the Trans-Pacific Partnership Agreement as incorporated by reference into the Comprehensive and Progressive Agreement for Trans-Pacific Partnership by Article 1 of that Agreement. The following definitions apply in subsection (2). Canada–United States–Mexico Agreement has the meaning assigned by the definition Agreement in section 2 of the Canada–United States–Mexico Agreement Implementation Act. (Accord Canada–États-Unis–Mexique) Comprehensive and Progressive Agreement for Trans-Pacific Partnership has the meaning assigned by the definition Agreement in section 2 of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation Act. (Accord de partenariat transpacifique global et progressiste) WTO Agreement has the meaning assigned by the definition Agreement in subsection 2(1) of the World Trade Organization Agreement Implementation Act. (Accord sur l’OMC) Incorporation by reference A regulation made under subsection 5(1) may incorporate by reference any document, regardless of its source, either as it exists on a particular date or as it is amended from time to time. Accessibility The Minister must ensure that any document that is incorporated by reference in a regulation made under subsection 5(1), including any amendments to the document, is accessible. Defence A person is not liable to be found guilty of an offence or subjected to an administrative sanction for any contravention in respect of which a document that is incorporated by reference in a regulation made under subsection 5(1) is relevant unless, at the time of the alleged contravention, the document was accessible as required by subsection (2) or it was otherwise accessible to the person. No registration or publication For greater certainty, a document that is incorporated by reference in a regulation made under subsection 5(1) is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference. Persons The Minister may, on application, register a person, or issue a licence to a person, authorizing them to conduct a prescribed activity in respect of a prescribed fertilizer or supplement that has been imported for sale — or that is to be exported or to be sent or conveyed from one province to another — or both register a person and issue them a licence. Conditions — regulations The registration and the licence are subject to the prescribed conditions. Conditions — Minister The Minister may make a registration or licence subject to any additional conditions that he or she considers appropriate. Obligation to comply The holder of the registration or licence must comply with all the conditions to which the registration or licence is subject. No transfer The registration or licence is not transferable. Establishments The Minister may, on application, register an establishment as one where a prescribed activity may be conducted in respect of a prescribed fertilizer or supplement that has been imported for sale or that is to be exported or to be sent or conveyed from one province to another. Holder The applicant in respect of an establishment is the holder of the registration. The registration is subject to the prescribed conditions. The Minister may make a registration subject to any additional conditions that he or she considers appropriate. The holder of the registration must comply with all the conditions to which the registration is subject. The registration is not transferable. Amendment, suspension, cancellation and renewal Subject to the regulations, the Minister may amend, suspend, cancel or renew a registration made under subsection 5.2(1) or 5.3(1) or a licence issued under subsection 5.2(1). Export certificates The Minister may issue any certificate or other document setting out any information that he or she considers necessary to facilitate the export of any fertilizer or supplement. Disposition of samples A sample taken by an inspector, or provided to the Minister or an inspector, under this Act may be disposed of in any manner that the Minister considers appropriate. Consideration of information In considering an application made under the regulations in relation to a fertilizer or supplement, the Minister may consider information that is available from a review or evaluation of a fertilizer or supplement conducted by the government of a foreign state or of a subdivision of a foreign state or by an international organization, or association, of states. Designation of inspectors and analysts The President of the Canadian Food Inspection Agency may designate under section 13 of the Canadian Food Inspection Agency Act the inspectors and analysts necessary for the administration and enforcement of this Act. Designation The President of the Canada Border Services Agency may designate inspectors under paragraph 9(2)(b) of the Canada Border Services Agency Act for the purposes of enforcing this Act. Certificate to be produced Inspectors shall be given certificates in a form established by the President of the Canadian Food Inspection Agency or the President of the Canada Border Services Agency, as the case may be, attesting to their designation and, on entering any place under subsection 7(1), an inspector shall, if so required, produce the certificate to the person in charge of that place. Powers of inspectors Subject to subsection (1.1), an inspector may, for a purpose related to verifying compliance or preventing non-compliance with this Act, enter any place in which the inspector believes on reasonable grounds there is any article to which this Act applies; open any package found in that place that the inspector believes on reasonable grounds contains any such article; examine the article and take samples thereof; and remove anything from that place for the purpose of examination, conducting tests or taking samples. Warrant required to enter dwelling-house Where any place referred to in paragraph (1)(a) is a dwelling-house, an inspector may not enter that dwelling-house without the consent of the occupant except under the authority of a warrant issued under subsection (1.2). Authority to issue warrant Where on ex parte application a justice of the peace is satisfied by information on oath that the conditions for entry described in paragraph (1)(a) exist in relation to a dwelling-house, that entry to the dwelling-house is necessary for any purpose relating to the administration or enforcement of this Act, and that entry to the dwelling-house has been refused or that there are reasonable grounds for believing that entry thereto will be refused, the justice of the peace may issue a warrant under his hand authorizing the inspector named therein to enter that dwelling-house subject to such conditions as may be specified in the warrant. Use of force In executing a warrant issued under subsection (1.2), the inspector named therein shall not use force unless the inspector is accompanied by a peace officer and the use of force has been specifically authorized in the warrant. Assistance to inspectors The owner or person in charge of any place described in subsection (1) and every person found in that place shall give an inspector all reasonable assistance to enable the inspector to carry out his duties and functions under this Act and shall furnish the inspector with any information he may reasonably require with respect to the administration of this Act and the regulations. Provision of documents, information or samples An inspector may, for a purpose related to verifying compliance or preventing non-compliance with this Act, order a person to provide, on the date, at the time and place and in the manner specified by the inspector, any document, information or sample specified by the inspector. Obstruction of inspectors No person shall obstruct or hinder an inspector in the carrying out of his duties or functions under this Act. False statements No person shall make a false or misleading statement either orally or in writing to an inspector or other officer engaged in carrying out his duties or functions under this Act. Seizure Where an inspector believes on reasonable grounds that this Act or the regulations have been contravened, the inspector may seize any article by means of or in relation to which the inspector believes on reasonable grounds the contravention was committed. Release of seized article If an inspector is satisfied that the provisions of this Act and the regulations that apply with respect to an article seized under this Act have been complied with, the article must be released. Forfeiture Where the Tribunal decides that a person has committed a violation, or a person is convicted of an offence under this Act, the Tribunal or the convicting court, as the case may be, may, in addition to any penalty or punishment imposed, order that any article by means of or in relation to which the violation or offence was committed, be forfeited to Her Majesty in right of Canada. Removal or destruction of unlawful imports An inspector who has reasonable grounds to believe that an imported fertilizer or supplement does not meet the requirements of the regulations or was imported in contravention of a provision of this Act or the regulations may, by notice, whether the fertilizer or supplement is seized or not, order its owner or importer or the person having possession, care or control of it to remove it from Canada or, if removal is not possible, to destroy it. Notice The notice must either be delivered personally to the owner or importer of the fertilizer or supplement or to the person having possession, care or control of it or be sent by registered mail to the owner’s, importer’s or person’s address in Canada. If the fertilizer or supplement is not removed from Canada or destroyed within the period specified in the notice — or, if no period was specified, within 90 days after the day on which the notice was delivered or sent — it is, despite subsection 9(2), forfeited to Her Majesty in right of Canada and may be disposed of as the Minister may direct. Suspension of application of subsection (3) An inspector may, for a period that he or she specifies, suspend the application of subsection (3) if he or she is satisfied that harm to human, animal or plant health or the environment is unlikely to result; the fertilizer or supplement will not be sold within that period; the measures that should have been taken for the fertilizer or supplement not to have been imported in contravention of a provision of this Act or the regulations will be taken within that period; and if the fertilizer or supplement does not meet the requirements of the regulations, it will be brought into compliance with the regulations within that period. Cancellation An inspector may cancel the notice if he or she is satisfied that the fertilizer or supplement has not been sold within the period referred to in subsection (6); the measures referred to in paragraph (4)(c) were taken within that period; and if the fertilizer or supplement did not meet the requirements of the regulations when it was imported, it was brought into compliance with the regulations within that period. Period The period for the purposes of subsection (5) is if the application of subsection (3) was suspended under subsection (4), the period of the suspension; and if the application of subsection (3) was not suspended, the period specified in the notice or, if no period was specified, the period that ends 90 days after the day on which the notice was delivered or sent. Non-application of Statutory Instruments Act The Statutory Instruments Act does not apply in respect of the notice. Analysis and examination An inspector may submit to an analyst, for analysis or examination, any sample taken by an inspector, or provided to the Minister or an inspector, under this Act; or anything removed under paragraph 7(1)(d), any article seized under subsection 9(1) or any sample of that thing or article. Her Majesty not liable If a person must, under this Act, do anything or permit an inspector to do anything, Her Majesty in right of Canada is not liable for any costs, loss or damage resulting from the compliance; or to pay any fee, including any rent or charge, for what is done or permitted to be done. No liability No person who exercises powers or performs duties or functions under this Act is liable in respect of anything done or omitted to be done in good faith in the exercise of those powers or the performance of those duties or functions. Offences Every person who contravenes any provision of this Act or the regulations or fails to do anything that the person is ordered to do by an inspector under this Act is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $50,000 or to imprisonment for a term not exceeding six months, or to both; or an indictable offence and liable to a fine not exceeding $250,000 or to imprisonment for a term not exceeding two years, or to both. Parties to offence If a person other than an individual commits an offence under section 10, any of the person’s directors, officers or agents or mandataries who directs, authorizes, assents to or acquiesces or participates in the commission of the offence is a party to the offence and is liable on conviction to the punishment provided for by this Act, even if the person is not prosecuted for the offence. Proof of offence In a prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or an agent or mandatary of the accused, even if the employee or the agent or mandatary is not identified or prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused and that the accused exercised all due diligence to prevent its commission. Limitation period Summary conviction proceedings for an offence under this Act may be instituted no later than two years after the day on which the subject matter of the proceedings arises. Certificate of analyst In any proceedings for a violation, or for an offence under this Act, a certificate of an analyst stating that the analyst has analyzed or examined a substance or a sample submitted to the analyst by an inspector and stating the result of the examination is evidence of the statement contained in the certificate. Venue A complaint or information in respect of an offence under this Act may be heard, tried or determined by a provincial court judge or a justice if the accused is resident or carrying on business within the territorial jurisdiction of the provincial court judge or justice, although the matter of the complaint or information did not arise in that territorial jurisdiction. Transitional For greater certainty, the two year limitation period provided for in subsection 10.1(1) of the Act, as amended by subsection (1), only applies in respect of offences committed after the coming into force of that subsection.