Statutory Duty Compliance Act

An Act respecting the timely performance of statutory duties owed to persons

Preamble

Whereas every duty that Parliament imposes on a federal public authority for the benefit of a person is imposed for the purpose of being performed;

Whereas a duty that carries no date by which it must be performed is not enforceable by the person it is owed to;

Whereas the failure of a federal public authority to perform a statutory duty within the period fixed by law causes harm to the person to whom the duty is owed, whether or not that person is able to prove a particular loss;

Whereas no judgment against His Majesty in right of Canada may presently be enforced by execution, with the result that a remedy obtained against a federal public authority is paid only when the Crown elects to pay it;

Whereas the statute book already contains the mechanisms this Act requires, and contains them on one side only: a debt owed by a person to the state is enforceable as an order of a superior court by operation of statute, while an order of a tribunal directing payment to the person is placed outside the only provision that would enforce it; a police officer forfeits the employer-funded portion of a pension for misconduct, while the definition that carried the same consequence for the public service was repealed in 1999; and a limitation period is extended where it presents a barrier, while no fee is waived on that ground at all;

And whereas persons who receive public money to deliver services to the public owe those persons duties that are at present subject to no period and no remedy;

Now, therefore, His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1 This Act may be cited as the Statutory Duty Compliance Act.

INTERPRETATION

2 (1) The following definitions apply in this Act.

claimant means a person to whom a statutory duty is owed. (demandeur)

default means the failure of a responsible authority to perform a statutory duty on or before the last day of the applicable period determined under section 5 or 6. (manquement)

federally funded service provider means a person, other than a federal public authority, who receives money from the Government of Canada, under a contract, contribution agreement or grant, for the purpose of delivering a service to members of the public, in respect of the delivery of that service. (fournisseur de services financé par le fédéral)

federal public authority means

(a) a government institution as defined in section 3 of the Access to Information Act;

(b) a Crown corporation as defined in subsection 83(1) of the Financial Administration Act; and

(c) any person or body exercising a power or performing a duty or function conferred by or under an Act of Parliament. (autorité publique fédérale)

notice of default means a notice given under section 7. (avis de manquement)

responsible authority means the federal public authority or federally funded service provider that owes the statutory duty. (autorité responsable)

statutory duty means a duty owed to a person, individually or as a member of a class, that is imposed on a responsible authority by or under an Act of Parliament, and includes a duty to make a decision, to give reasons, to give notice, to make a payment, to produce a record, or to comply with an order of a court or of an administrative tribunal. (obligation légale)

2 (2) For greater certainty, a duty does not cease to be a statutory duty by reason only that the manner of its performance involves the exercise of discretion.

PURPOSE

3 The purpose of this Act is to make the timely performance of statutory duties enforceable by the persons to whom those duties are owed, by

(a) fixing a period for the performance of every statutory duty;

(b) establishing a monetary consequence for default that does not depend on proof of the responsible authority's state of mind;

(c) making a judgment obtained under this Act enforceable in the same manner as a judgment between persons; and

(d) requiring the public reporting of defaults.

APPLICATION

4 (1) This Act applies to every statutory duty owed by a responsible authority.

4 (2) This Act applies to a federally funded service provider only in respect of the delivery of the service for which the money is received.

4 (3) This Act binds His Majesty in right of Canada.

THE PERIOD FOR PERFORMANCE

5 Where an Act of Parliament or a regulation fixes a period within which a statutory duty is to be performed, that period applies.

6 (1) Where no period is fixed, the statutory duty shall be performed within 30 days after the day on which the responsible authority receives the request, application or other thing that gives rise to the duty.

6 (2) A period fixed by a policy, guideline, service standard or internal practice of the responsible authority does not displace subsection (1), and where such a period is shorter than 30 days, it applies.

6 (3) A responsible authority may extend the period under subsection (1) once, by not more than 30 days, by giving the claimant written notice before the period expires that states the extension, the day on which the extended period expires, and the reason for the extension. A notice that does not state all three is of no effect.

NOTICE OF DEFAULT

7 (1) A claimant may, at any time after a default, give the responsible authority a written notice that identifies the statutory duty, the day on which the period expired, and the claimant's address for service.

7 (2) A notice of default may be given by any means that produces a record of its delivery, including electronic mail.

7 (3) No formality other than subsection (1) is required, and no fee is payable for giving a notice of default.

DUTY TO ASSIST

7.1 (1) A responsible authority shall make every reasonable effort to assist a claimant to obtain the performance of a statutory duty, and that duty of assistance extends to every step required of the claimant, including the form of any application, the production of any document, and the payment of any fee.

7.1 (2) Where a fee is payable by a claimant in connection with a statutory duty, the responsible authority shall waive it if, after considering the following, waiver is fair and equitable:

(a) whether payment would cause financial hardship to the claimant;

(b) whether the fee exceeds the cost to the responsible authority of the step for which it is charged;

(c) whether any method of payment is available to the claimant that does not itself cost more than the fee; and

(d) whether the fee presents a barrier within the meaning of the Accessible Canada Act.

7.1 (3) The responsible authority shall give the claimant written reasons addressing each of the matters listed in subsection (2), and a decision that does not address each of them is not a decision for the purposes of this Act.

7.1 (4) No fee is payable in connection with anything done under this Act.

PRESUMPTION OF HARM

8 (1) Where a default occurs, the claimant is presumed to have suffered harm, and no proof of any particular loss, expense, injury or hardship is required.

8 (2) The presumption in subsection (1) may not be rebutted.

8 (3) For greater certainty, a claimant who proves loss in addition to the presumed harm may recover it, and this Act does not limit any other remedy.

DAILY COMPENSATION

9 (1) A responsible authority in default shall pay the claimant $250 for each day of the default, beginning on the first day after the period expired and ending on the day the duty is performed.

9 (2) Where a default continues for more than 90 days, the amount payable under subsection (1) is $500 for each day after the ninetieth day.

9 (3) The amounts in subsections (1) and (2) shall be adjusted on January 1 of each year in accordance with the Consumer Price Index for Canada published by Statistics Canada.

9 (4) No court or tribunal may reduce an amount payable under this section, except under section 10.

9 (5) Compensation payable under this Act is a civil remedy. It is not a penalty, is not a sanction, and does not constitute an offence or a conviction for any purpose.

THE ONLY DEFENCE

10 (1) A responsible authority is not liable under section 9 for a day of default if it establishes, on a balance of probabilities, that performance on that day was prevented by an event beyond its control that it could not reasonably have provided against.

10 (2) The following do not constitute an event beyond the control of a responsible authority:

(a) the volume of requests, applications or files before it;

(b) the number, availability, assignment, absence or turnover of its personnel;

(c) the state of its records, systems or information technology;

(d) the allocation of money to it, or within it; and

(e) the fact that the duty was assigned to another person, office or authority.

10 (3) The burden of proof under subsection (1) is on the responsible authority.

NO CONTRACTING OUT

11 Any waiver of or agreement to limit the operation of this Act is void, whether given before or after the default, and whether or not given for consideration.

APPLICATION TO PAST DEFAULTS

12 (1) This Act applies to a default that occurred on or after the day that is three years before the day on which this Act comes into force, and to any part of such a default that continues after that day.

12 (2) For a default described in subsection (1) that occurred before the coming into force of this Act, compensation under section 9 runs from the later of the first day after the period expired and the day that is three years before the coming into force of this Act.

12 (3) For greater certainty, subsection (1) operates only in respect of the civil remedy created by this Act, and creates no offence in respect of any act or omission.

ENFORCEMENT

13 (1) A claimant may apply to the Federal Court, or to a superior court of a province, for

(a) an order requiring the responsible authority to perform the statutory duty; and

(b) judgment for the amount payable under section 9.

13 (2) Where the court finds that the period determined under section 5 or 6 has expired and that the duty has not been performed, the court shall make the order described in paragraph (1)(a), and the balance of convenience is not a consideration.

13 (3) An order under paragraph (1)(a) shall state the day by which the duty is to be performed, which shall be not later than 30 days after the day the order is made.

13 (4) Where a responsible authority does not perform the duty by the day stated in the order, the court may, on the application of the claimant,

(a) remain seized of the matter and require the responsible authority to report to the court, in writing and on a schedule fixed by the court, on the steps taken to perform the duty;

(b) appoint a person to supervise the performance of the duty at the expense of the responsible authority, and require the responsible authority to give that person access to the records, premises and systems necessary for that purpose; and

(c) make any further order necessary to secure performance, including an order for contempt against a named officer who has been personally served with the order.

13 (5) For greater certainty, nothing in this section authorizes a person appointed under paragraph (4)(b) to make a decision that the statutory duty requires the responsible authority to make.

EXECUTION

14 (1) Section 29 of the Crown Liability and Proceedings Act does not apply to a judgment for an amount payable under section 9 of this Act.

14 (2) A judgment for an amount payable under section 9 may be enforced against the responsible authority in the same manner as a judgment between persons, and execution may issue accordingly.

14 (3) Where the responsible authority is a federal public authority, the amount shall be charged to the appropriation of that authority for the fiscal year in which it is paid, and shall not be charged to any other appropriation.

14 (4) No amount paid under this Act is recoverable from the claimant, and no such amount shall be set off against any benefit, allowance or payment otherwise payable to the claimant.

PUBLIC REPORTING

15 (1) Every federal public authority shall, within three months after the end of each fiscal year, publish and cause to be laid before each House of Parliament a report setting out, for that year,

(a) the number of statutory duties it was required to perform, by category;

(b) the number of defaults;

(c) the length of each default in days; and

(d) the total amount paid under section 9.

15 (2) The report shall be published in a machine-readable format and shall not identify any claimant.

15 (3) The failure to publish a report required by this section is itself a default, and the claimant for the purposes of sections 8 and 9 is any person who has given a notice of default in respect of it.

RELATIONSHIP TO OTHER LAW

16 (1) The remedies in this Act are in addition to, and not in substitution for, any other remedy.

16 (2) No leave, consent or authorization of any person is required to commence a proceeding under this Act.

16 (3) A limitation period applicable to a proceeding under this Act does not begin to run until the day the statutory duty is performed.

COMING INTO FORCE

17 This Act comes into force on the day that is 90 days after the day on which it receives royal assent.