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Fuel Tax Act

R.S.O. 1990, CHAPTER F.35

Consolidation Period:  From April 1, 2014 to the e-Laws currency date.

Last amendment: 2013, c. 2, Sched. 7.

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CONTENTS

1.

Definitions

1.1

Exemptions under other Acts

2.

Tax on clear fuel

2.1

Manufacturer: registration certificate

3.

Collector

3.0.1

Distributor

3.1

Collection of tax by collector or distributor

3.2

Remittance of tax

3.3

Collection of tax by retail dealer

3.4

Payment to wholesaler

3.5

Remittance of tax by wholesaler

3.6

Tax held in trust

3.6.1

Trust for moneys collected

3.7

Eligibility as member of Legislative Assembly

3.9

Offence

4.

Registered importer

4.1

Export of fuel

4.2

Conditions and limitations

4.3

Collection of tax by importer

4.4

Notice of change, importer or exporter

4.5

Importing for use as other than clear fuel

4.6

Certificate to be carried

4.7

Security by interjurisdictional transporter

4.8

Export of fuel

4.9

Offence, unregistered exporter

4.10

Offence, exporter

4.11

Registered consumer

4.12

Offence, registered consumer

4.13

Interjurisdictional carrier

4.14

Notice of change, interjurisdictional carrier

4.15

Communication re refund to broker driver

4.16

Offence, interjurisdictional carrier

4.17

Registered dyer

4.18

Dye-points

4.19

Offence

5.

Detention and examination of motor vehicle or vessel

5.1

Authority to stop and detain commercial fuel-powered motor vehicle

6.

Invoice

6.1

Records

7.

Demand for information, security

8.

Interjurisdictional transporter

9.

Refusal to designate or register

10.

Returns

11.

Transmission of tax

11.1

Interest

12.

Minister may demand information

13.

Assessment

13.1

Assessment, non-arm’s length transfers

14.

Objections and appeals

14.1

Application under subrule 14.05 (2), Rules of Civil Procedure

15.

Certificate to prove amount of tax

16.

Offence

17.

Recovery of tax

17.0.1

Recovery of costs

17.1

Lien on real property

18.

Audit and inspection

19.

Fuel in bulk

20.

Relief from interest

21.

Refund

21.1

Adjustments for temperature

22.

Communication of information

22.1

Disclosure of names and addresses

23.

Interjurisdictional settlement of competing tax claims

24.

Remedies for recovery of tax and penalties

25.

Offence, false statements

25.1

Directors

26.

Offence

27.

Offence

27.1

Penalty, re coloured fuel

28.

Offence

28.1

Service of offence notice or summons

28.1.1

Agreement with the Federal Government

28.2

Interjurisdictional agreements

28.3

Approval of dye by Minister

29.

Regulations

30.

Forms

 

Definitions

1. (1) In this Act,

“adjusted temperature method” means the method of measuring the dispensed volume of fuel by adjusting the volume to the volume at a reference temperature of 15 degrees Celsius, by means of a dispensing pump or other metering assembly that is equipped to effect the adjustment in accordance with the specifications established under the Weights and Measures Act (Canada); (“méthode de correction en fonction de la température”)

“broker driver” means a person who has entered into a written agreement to drive a motor vehicle and be responsible for the purchase of the fuel used to generate power in the motor vehicle on behalf of the operator of the motor vehicle if the operator is an interjurisdictional carrier; (“conducteur-contractant”)

“bulk plant” means a storage facility, other than a terminal, that is capable of holding in storage fuel in bulk for subsequent sale or delivery to wholesalers, retail dealers or purchasers but from which fuel is not sold or delivered directly into a fuel tank; (“installation de stockage en vrac”)

“clear fuel” means fuel that contains no dye or less dye than the minimum quantity established by the Minister; (“carburant incolore”)

“collector” means a person designated as a collector by the Minister under section 3; (“percepteur”)

“coloured fuel” means fuel which contains dye in a quantity greater than or equal to the amount established by the Minister; (“carburant coloré”)

“colouring” and “colour” mean, in respect of fuel, the addition to the fuel of dye in the proportion established by the Minister by a person authorized to do so by the Minister; (“coloration”, “colorer”)

“debtor” means a person to whom a collector, importer, wholesaler or retail dealer has sold fuel; (“débiteur”)

“distributor” means a person who sells special products only and who is designated as a distributor by the Minister; (“distributeur”)

“driver” means the person having care and control of a motor vehicle whether the motor vehicle is in motion or not; (“conducteur”)

“dye” means chemical substances that are approved by the Minister for the purpose of blending with fuel to make coloured fuel; (“colorant”)

“dye-point” means a terminal designated by the Minister for the purpose of colouring fuel or a facility that meets the requirements established by the Minister for colouring fuel at the facility; (“station de coloration”)

“exporter” means a person who takes or causes to be taken out of Ontario fuel in bulk and who is accountable for the tax on the fuel to the jurisdiction into which the fuel is taken; (“exportateur”)

“facility” means a facility that is owned or operated by a distributor and that meets the requirements set out in the regulations; (“installation”)

“fuel” means any gas or liquid that may be used for the purpose of generating power by internal combustion, and includes any special product or any substance added to the gas or liquid, but does not include,

(a) any product excluded from this Act by the regulations and to which subsection 2 (3) does not apply, or

(b) gasoline, aviation fuel or propane on which the tax imposed by the Gasoline Tax Act has been paid; (“carburant”)

“fuel in bulk” means fuel transported or transferred by any means other than in a fuel tank of a motor vehicle in which fuel for generating power in the motor vehicle is kept; (“carburant en vrac”)

“fuel tank” means that part of a motor vehicle in which fuel for generating power in the motor vehicle is kept; (“réservoir à carburant”)

“gross vehicle weight” means,

(a) the combined weight of the motor vehicle and load, or

(b) where the motor vehicle is drawing a trailer or trailers, the combined weight of the motor vehicle, trailer or trailers and load; (“poids brut du véhicule”)

“importer” means a person who brings or causes to be brought into Ontario fuel in bulk; (“importateur”)

“interjurisdictional carrier” means a person who,

(a) operates one or more interjurisdictional vehicles inside and outside Ontario to which number plates are attached as required by the Highway Traffic Act, or

(b) engages in the commercial transportation of goods or passengers inside and outside Ontario and operates for that purpose railway equipment on rails in connection with and as part of a public transportation system; (“transporteur interterritorial”)

“interjurisdictional transporter” means the registered owner of a motor vehicle, the operator or shipping agent of record of a vessel, the operator of railway equipment on rails or the owner or operator of a pipeline facility if the registered owner, owner or operator engages in the transportation or transfer of fuel in bulk and operates for that purpose,

(a) one or more motor vehicles inside and outside Ontario to which number plates are attached as required by the Highway Traffic Act,

(b) one or more vessels under the Canada Shipping Act,

(c) railway equipment on rails in connection with and as part of a public transportation system inside and outside Ontario, or

(d) a pipeline facility inside and outside Ontario; (“agent interterritorial”)

“interjurisdictional vehicle” means a motor vehicle, other than a recreational vehicle,

(a) that is operated by an interjurisdictional carrier,

(b) that is powered by fuel,

(c) that is used, designed or maintained for the transportation of persons or property and,

(i) has two axles and a gross vehicle weight or registered gross vehicle weight exceeding 26,000 pounds or 11,797 kilograms,

(ii) has three or more axles regardless of weight, or

(iii) draws a trailer or trailers when the combined weight of the vehicle and the trailer or trailers exceeds 26,000 pounds or 11,797 kilograms gross vehicle weight or registered gross vehicle weight, and

(d) that is operated or expected to be operated both inside and outside Ontario during a registration year; (“véhicule de transport interterritorial”)

“manufacturer” means a person who manufactures, blends, modifies or produces fuel for distribution, sale or storage in Ontario but does not include a person designated by the Minister as a distributor; (“fabricant”)

“Minister” means the Minister of Finance; (“ministre”)

“motor vehicle” means a machine operated, propelled or driven otherwise than by muscular power; (“véhicule automobile”)

“northern terminal” means a storage facility situated in Ontario north of 46 degrees north latitude, owned or operated by a collector, that is capable of holding middle distillate fuels in storage for subsequent sale by the collector, to which not less than 90 per cent by volume of its receipts of middle distillate fuels in any year are transported by rail tank car, each such tank car transporting not less than 70,000 litres of middle distillate fuels to the storage facility; (“terminal du Nord”)

“operator” means, when used with reference to a motor vehicle other than a motor vehicle designed for use as a vessel, an aircraft or railway equipment operated on rails,

(a) the registered owner, if the motor vehicle is not leased to another person or, if leased, is leased to another person for not more than thirty consecutive days,

(b) the lessee, if the motor vehicle is leased for more than thirty consecutive days, unless the lessee has entered into a written agreement with the lessor under which the lessor agrees to account for and remit to the Minister the tax imposed by this Act on all fuel used by the motor vehicle during the term of the lease, or

(c) the lessor, if the lessor has entered into a written agreement under which the lessor agrees to account for and remit to the Minister the tax imposed by this Act on fuel used by the motor vehicle during the term of the lease; (“utilisateur”)

“prescribed” means prescribed by the regulations; (“prescrit”)

“purchaser” means a person who acquires or receives fuel for his, her or its own use or consumption or for the use or consumption by others at his, her or its expense, or on behalf of, or as agent for, a principal who desires to acquire the fuel for use or consumption by him, her or it or other persons at his, her or its expense; (“acheteur”)

“recreational vehicle” means a motor vehicle, whether or not it draws a trailer or trailers, used as transportation without compensation and for personal or recreational purposes and not used in connection with any business endeavour; (“véhicule de tourisme”)

“registered consumer” means the holder of a valid fuel acquisition permit under this Act; (“consommateur inscrit”)

“registered dyer” means a collector or distributor who holds a certificate of registration under the Act as a dyer; (“préposé à la coloration inscrit”)

“registered exporter” means an exporter to whom a subsisting certificate of registration as an exporter has been issued under this Act; (“exportateur inscrit”)

“registered gross vehicle weight” means the weight for which a permit has been issued under the Highway Traffic Act; (“poids brut enregistré du véhicule”)

“registered importer” means an importer to whom a subsisting certificate of registration as an importer has been issued under this Act; (“importateur inscrit”)

“registered owner”, in relation to a motor vehicle or trailer, means the person to whom a numbered permit for the motor vehicle or trailer has been issued under the Highway Traffic Act or would have been issued but for a reciprocal agreement between Ontario and another jurisdiction; (“propriétaire inscrit”)

“regulations” means the regulations made under this Act; (“règlements”)

“retail dealer” means a person who sells fuel to a purchaser; (“détaillant”)

“special products” means products prescribed by the Minister as special products; (“produits spéciaux”)

“tax” includes all penalties and interest and includes dye costs assessed under section 13 that are or may be added to a tax under this Act; (“taxe”)

“terminal” means a storage facility owned or operated by a collector that is capable of holding in storage fuel in bulk for subsequent sale by the collector to which not less than 70 per cent by volume of its receipts of fuel in each calendar year are transported or transferred by vessel or pipeline; (“terminal”)

“unadjusted temperature method” means a method of measuring the dispensed volume of fuel that does not adjust the volume to the volume at a reference temperature of 15 degrees Celsius; (“méthode traditionnelle”)

“unauthorized fuel” means fuel that has been acquired exempt from tax in another jurisdiction and that contains a substance that colours the fuel in any manner, whether or not the colouring has been carried out in accordance with the Act; (“carburant non autorisé”)

“vessel” means a ship, boat, barge or other watercraft that is designed to move in or through water, but does not include an aircraft capable of operating on water or a vehicle moving on ice; (“bâtiment”)

“wholesaler” means a person who sells fuel for the purpose of resale. (“grossiste”)  R.S.O. 1990, c. F.35, s. 1; 1991, c. 49, s. 1 (1, 2); 1994, c. 18, s. 2 (1-3); 1996, c. 10, s. 1; 1998, c. 30, s. 1; 2001, c. 23, s. 89; 2002, c. 8, Sched. C, s. 1; 2002, c. 22, s. 73; 2013, c. 2, Sched. 7, s. 1.

Interjurisdictional transporter

(2) If a registered owner as defined in subsection (1) has leased a motor vehicle for more than thirty consecutive days, the definition shall be read, in respect of the registered owner and the motor vehicle, by substituting “lessee” for “registered owner”.  1991, c. 49, s. 1 (3).

Exemptions under other Acts

1.1 No person otherwise subject to tax under this Act is exempt therefrom by reason of an exemption granted to the person, or to or in respect of the personal or real property of the person, by or under any other Act, unless the other Act expressly mentions this Act.  2001, c. 23, s. 90.

Tax on clear fuel

2. (1) Every purchaser shall pay to the Minister a tax at the rate of,

(a) Repealed:  2005, c. 31, Sched. 7, s. 1 (1).

(b) 14.3 cents per litre on all clear fuel received or used by a purchaser in Ontario other than clear fuel received or used by a purchaser to operate railway equipment operated on rails in connection with a public transportation system.

(c) Repealed:  2005, c. 31, Sched. 7, s. 1 (3).

(d) 4.5 cents per litre on all fuel received or used in Ontario to propel railway equipment on rails in connection with and as part of a public transportation system, including any product excluded from this Act by the provisions of this Act or the regulations.  1991, c. 49, s. 2; 1994, c. 18, s. 2 (4); 2005, c. 31, Sched. 7, s. 1 (1-4); 2008, c. 19, Sched. H, s. 1 (1).

Payment of tax

(2) Subject to subsection (3), the tax imposed by subsection (1) shall be paid to the Minister in accordance with section 11,

(a) at the time the clear fuel is supplied to the purchaser;

(b) if the clear fuel is acquired by the purchaser outside Ontario in the fuel tank of a motor vehicle, at the time the fuel is used in Ontario; or

(c) if the clear fuel is imported into Ontario by an importer who is also a purchaser, at the prescribed time and in the prescribed manner.  1991, c. 49, s. 2; 1994, c. 18, s. 2 (4).

Calculation of tax, clear fuel

(2.1) Where clear fuel is acquired and held in storage by a purchaser in Ontario prior to the effective date of an increase in the tax rate imposed by subsection (1) and where the clear fuel is to be used in a manner other than that permitted for the purposes of section 4.11 on or after the effective date of the increase in the tax rate imposed by subsection (1), the purchaser shall remit to the Minister in the prescribed manner the amount determined by the following formula:

A = R × V

where:

A is the amount of the tax to be remitted;

R is the difference between the tax rate at the time the clear fuel is acquired and the tax rate at the time the clear fuel is used; and

V is the volume of clear fuel, in litres, held in storage on the effective date of the tax increase.

1994, c. 18, s. 2 (7); 2005, c. 31, Sched. 7, s. 1 (5).

Products used as clear fuel

(3) Every person is liable to pay to the Minister a tax at the rate imposed by this Act upon a purchaser of clear fuel in respect of,

(a) a product excluded from this Act by the regulations, or a fuel that is not clear fuel, that the person places in a fuel tank of a motor vehicle to which a number plate is attached as required by the Highway Traffic Act; or

(b) fuel that is not clear fuel that the person places in a fuel tank of a motor vehicle or vessel if the motor vehicle or vessel is operated or intended to be operated principally for the pleasure or recreation of its owner or operator.  1991, c. 49, s. 2; 1994, c. 18, s. 2 (4); 2008, c. 19, Sched. H, s. 1 (2, 3).

(3.1) Repealed: 2013, c. 2, Sched. 7, s. 2.

Remittance of tax

(4) Every person liable to tax under subsection (3) shall remit the tax forthwith to the Minister in the prescribed manner.  1991, c. 49, s. 2; 1994, c. 18, s. 2 (4).

Measuring volume and calculating tax

(4.1) The tax imposed by this Act shall be computed in accordance with the following rules:

1. If the volume of fuel is measured by the adjusted temperature method for the purpose of determining price, the volume of the fuel shall be measured using that method for the purpose of computing amounts in respect of the tax imposed by this Act.

2. If the volume of fuel is measured by the unadjusted temperature method for the purpose of determining price, the volume of the fuel shall be measured using that method for the purpose of computing amounts in respect of the tax imposed by this Act.

3. A person who is a collector or wholesaler shall use the same method of measuring the volume of fuel on all sales to the same person during the same year.  1998, c. 30, s. 2 (1).

Exception

(4.2) Despite subsection (4.1), a person who is a collector or wholesaler may change to the other method of measuring the volume of fuel on sales to a particular person,

(a) if a change in method is made only once; and

(b) if the determination of the amount of tax in respect of sales after the change in method is based on volumes measured by the new method.  1998, c. 30, s. 2 (1).

Additional liability

(5) The tax imposed by subsection (3) is in addition to any penalty imposed under this Act.  1991, c. 49, s. 2.

Prohibited use of coloured fuel

(6) No person shall place or cause to be placed any coloured fuel in a fuel tank of,

(a) a motor vehicle to which a number plate is attached as required under the Highway Traffic Act; or

(b) a motor vehicle or vessel operated or intended to be operated principally for the pleasure or recreation of its owner or operator.  2008, c. 19, Sched. H, s. 1 (4).

Use of coloured fuel

(7) Coloured fuel may be used for any purpose prescribed by the Minister for the use of coloured fuel and for all purposes other than generating power in a motor vehicle or vessel referred to in subsection (6).  2008, c. 19, Sched. H, s. 1 (5).

Prohibition, unauthorized fuel

(7.1) No person shall place or cause to be placed any unauthorized fuel in a fuel tank of a motor vehicle to which a number plate is attached as required under the Highway Traffic Act.  1998, c. 30, s. 2 (3).

Amounts in lieu of tax

(8) Where any person selling fuel receives any payment made as or on account of the tax payable under this Act,

(a) the payment shall be dealt with and accounted for as tax under this Act;

(b) any person who fails to deal with and account for the payment in accordance with this Act and the regulations is liable to the same penalties and fines, and is guilty of the same offences, as would apply if the payment were the tax payable under this Act;

(c) the Minister may collect and receive the payment by the same remedies and procedures as are provided by this Act and the regulations for the collection and enforcement of the tax payable under this Act; and

(d) for the purposes of the assessment and collection of the payment, the person receiving the payment as or in lieu of the tax payable under this Act is deemed to be a collector.  1991, c. 49, s. 2.

Offence

(9) Every person who knowingly fails to pay the tax imposed by subsection (1) or (3) when required to do so by this Act or the regulations is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than double the amount of the tax that the person fails to pay.  1991, c. 49, s. 2.

Idem

(10) Every person who fails to comply with subsection (2) is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $500.  1991, c. 49, s. 2.

Manufacturer: registration certificate

2.1 (1) Every manufacturer shall apply for and the Minister shall issue a registration certificate in such form and manner as the Minister requires.  2002, c. 22, s. 75.

Conditions and restrictions

(2) The Minister may, as a requirement for the issuance of a registration certificate, impose such reasonable conditions and restrictions as the Minister considers appropriate.  2002, c. 22, s. 75.

Change of business

(3) Every manufacturer shall forthwith notify the Minister of all changes in the name or nature of the manufacturer’s business or of the termination of the business.  2002, c. 22, s. 75.

Offence

(4) A person who operates as a manufacturer in Ontario without holding a registration certificate issued under this section is guilty of an offence and on conviction is liable to a fine of not less than $500 and not more than $10,000.  2002, c. 22, s. 75.

Same

(5) A manufacturer who contravenes a condition or restriction contained in the registration certificate issued to the manufacturer under this section is guilty of an offence and on conviction is liable to a fine of not less than $500 and not more than $10,000.  2002, c. 22, s. 75.

Same

(6) A manufacturer who fails to comply with subsection (3) is guilty of an offence and on conviction is liable to a fine of not less than $500 and not more than $10,000.  2002, c. 22, s. 75.

Penalty, failure to register

(7) Every person who operates as a manufacturer in Ontario without holding a registration certificate issued under this section shall pay to the Minister, when assessed therefor, a penalty equal to the tax that would be payable under this Act on the volume of fuel that the person produced during the period that the person did not hold a registration certificate, calculated as if that fuel were clear fuel received or used by a purchaser liable to pay tax under clause 2 (1) (b).  2002, c. 22, s. 75.

Collector

3. (1) The Minister may designate in writing as a collector a person whose sales of clear fuel at wholesale during the twelve-month period before the designation are not less than 51 per cent by volume of the person’s total sales of clear fuel.

Conditions and limitations

(2) The Minister may attach such reasonable conditions and limitations to a designation as a collector as the Minister considers appropriate.

Termination of designation

(3) The Minister may terminate a person’s designation as a collector at the end of any twelve-month period during which the person’s sales of clear fuel at wholesale are less than 51 per cent by volume of the person’s total sales of clear fuel.

Idem

(4) The Minister may terminate a person’s designation as a collector if the person has not sold or delivered fuel for resale in Ontario for a period of six consecutive months.

Notice of termination

(5) The termination of a designation under subsection (3) or (4) is effective fourteen days after the date on which the Minister mails notice of the termination.

Collector is agent

(6) Every collector is an agent of the Minister for the purpose of collecting and remitting the tax imposed by this Act.

Agreements

(7) For the purpose of ensuring and facilitating collection of the tax under this Act, the Minister may enter into such arrangements and agreements with a collector as the Minister considers appropriate.  1991, c. 49, s. 3.

Distributor

3.0.1 (1) The Minister may designate in writing as a distributor a person who sells only special products.

Conditions and limitations

(2) The Minister may attach such conditions and limitations to the designation as the Minister considers appropriate.

Termination

(3) The Minister may terminate a person’s designation,

(a) if the person has not sold or delivered any special product for which the designation was issued for a period of six consecutive months;

(b) if the person ceases to sell the special product for which the designation was issued;

(c) if the product sold by the person ceases to be a special product;

(d) if the person changes the nature of the person’s business or ceases to operate the business of selling special products; or

(e) if the requirements relating to the facility owned or operated by the person are not met.

Notice of termination

(4) The termination of a designation is effective 14 days after the date on which the Minister mails notice of the termination.

Distributor as agent

(5) Every distributor is an agent of the Minister for the purpose of collecting and remitting the tax imposed by this Act.

Agreements

(6) The Minister may enter into such arrangements and agreements with a distributor as the Minister considers appropriate to ensure and facilitate the collection of tax under this Act.  1998, c. 30, s. 3.

Collection of tax by collector or distributor

3.1 (1) Every collector or distributor shall collect the tax imposed by this Act from every person to whom he, she or it sells fuel.  1991, c. 49, s. 3; 1998, c. 30, s. 4.

Exception

(2) A collector shall not collect tax on the sale of fuel to another collector who is not a purchaser in respect of the fuel.  1991, c. 49, s. 3.

Remittance of tax

3.2 (1) Every collector or distributor shall remit to the Minister, at the prescribed times and in the prescribed manner, the tax collectable by him, her or it.  1991, c. 49, s. 3; 1994, c. 18, s. 2 (5); 1998, c. 30, s. 5 (1).

Idem

(2) Every collector or distributor shall remit to the Minister, at the prescribed times and in the prescribed manner, the tax imposed by this Act on fuel in respect of which he, she or it is the purchaser.  1991, c. 49, s. 3; 1994, c. 18, s. 2 (5); 1998, c. 30, s. 5 (2).

Collection of tax by retail dealer

3.3 (1) A retail dealer who sells or delivers fuel to a purchaser shall collect from the purchaser the tax imposed by this Act.

Retail dealer is agent

(2) For the purposes of collecting the tax, the retail dealer is an agent of the Minister.  1991, c. 49, s. 3.

Payment to wholesaler

3.4 (1) Every retail dealer shall pay over to the wholesaler, from whom the retail dealer has purchased fuel, the tax collected under this Act on the sale of the fuel by the retail dealer.

Collection by wholesaler

(2) Every wholesaler who sells fuel to a retail dealer shall collect from the retail dealer the tax collected under this Act on the sale of the fuel by the retail dealer.

Wholesaler is agent

(3) For the purposes of collecting the tax, the wholesaler is an agent of the Minister.  1991, c. 49, s. 3.

Exception

(4) Subsections (1) and (2) do not apply in respect of a retail dealer who is a collector, a distributor or a registered importer.  1991, c. 49, s. 3; 1998, c. 30, s. 6.

Remittance of tax by wholesaler

3.5 (1) Every wholesaler who collects tax under section 3.4 shall pay the tax to the collector, distributor or registered importer from whom the wholesaler purchased the fuel.  1991, c. 49, s. 3; 1998, c. 30, s. 7 (1).

Exception

(2) Subsection (1) does not apply to a wholesaler who is a collector, distributor or registered importer.  1991, c. 49, s. 3; 1998, c. 30, s. 7 (2).

Tax held in trust

3.6 (1) Every wholesaler or retail dealer who collects tax in accordance with this Act is deemed to hold the tax in trust for Her Majesty in right of Ontario until the tax is paid over to a collector, distributor or importer.  1991, c. 49, s. 3; 1998, c. 30, s. 8 (1).

(2) Repealed:  1998, c. 30, s. 8 (2).

Trust for moneys collected

3.6.1 (1) Any amount collected or collectable as or on account of tax under this Act by a collector, distributor or registered importer shall be deemed, despite any security interest in the amount so collected or collectable, to be held in trust for Her Majesty in right of Ontario and separate and apart from the property of the collector, distributor or registered importer, and from property held by any secured creditor that but for the security interest would be the property of the collector, distributor or registered importer, and shall be paid over by the collector, distributor or registered importer in the manner and at the time provided under this Act and the regulations.  1998, c. 30, s. 9.

Extension of trust

(2) Despite any provision of this or any other Act, where at any time an amount deemed by subsection (1) to be held in trust is not paid as required under this Act, property of the collector, distributor or registered importer and property held by any secured creditor of the collector, distributor or registered importer that, but for a security interest would be property of the collector, distributor or registered importer, equal in value to the amount so deemed to be held in trust shall be deemed,

(a) to be held, from the time the amount was collected or collectable by the collector, distributor or registered importer, separate and apart from the property of the collector, distributor or registered importer in trust for Her Majesty in right of Ontario whether or not the property is subject to a security interest; and

(b) to form no part of the estate or property of the collector, distributor or registered importer from the time the amount was so collected or collectable whether or not the property has in fact been kept separate and apart from the estate or property of the collector, distributor or registered importer and whether or not the property is subject to such security interest.  1998, c. 30, s. 9.

Same

(3) The property described in subsection (2) shall be deemed to be beneficially owned by Her Majesty in right of Ontario despite any security interest in such property or in the proceeds of such property, and the proceeds of such property shall be paid to the Minister in priority to all such security interests.  1998, c. 30, s. 9.

(4) Revoked:  2012, c. 8, Sched. 17, s. 1.

Minister’s certificate

(5) Every person who, as assignee, liquidator, administrator, receiver, receiver-manager, secured or unsecured creditor or agent of the creditor, trustee or other like person, other than a trustee appointed under the Bankruptcy and Insolvency Act (Canada), takes control or possession of the property of any collector, distributor or registered importer shall, before distributing such property or the proceeds from the realization thereof under that person’s control, obtain from the Minister a certificate that the amount deemed by subsection (1) to be held in trust, including any interest and penalties payable by the collector, distributor or registered importer, has been paid or that security acceptable to the Minister has been given.  1998, c. 30, s. 9.

No distribution without Minister’s certificate

(6) Any person described in subsection (5) who distributes any property described in that subsection or the proceeds of the realization thereof without having obtained the certificate required by that subsection is personally liable to Her Majesty in right of Ontario for an amount equal to the amount deemed by subsection (1) to be held in trust, including any interest and penalties payable by the collector, distributor or registered importer.  1998, c. 30, s. 9.

Notice to be given

(7) The person described in subsection (5) shall, within 30 days from the date of that person’s assumption of possession or control give written notice thereof to the Minister.  1998, c. 30, s. 9.

Minister to advise of indebtedness

(8) As soon as practicable after receiving such notice, the Minister shall advise the person described in subsection (5) of the amount deemed by subsection (1) to be held in trust, including any interest and penalties thereon.  1998, c. 30, s. 9.

Definitions

(9) In this section and in subsection 17 (3.1),

“secured creditor” means a person who has a security interest in the property of another person or who acts for or on behalf of that person with respect to the security interest, and includes a trustee appointed under a trust deed relating to a security interest, a receiver or receiver-manager appointed by a secured creditor or by a court on the application of a secured creditor and any other person performing a similar function; (“créancier garanti”)

“security interest” means any interest in property that secures payment or performance of an obligation, and includes an interest created by or arising out of a debenture, mortgage, lien, pledge, charge, deemed or actual trust, assignment or encumbrance of any kind whatsoever or whenever arising, created or deemed to arise or otherwise provided for, but does not include a security interest prescribed by the Minister as one to which this section does not apply. (“sûreté”)  1998, c. 30, s. 9.

Application

(10) This section, subsection 17.1 (11.1) and clause 25.1 (2) (b) apply in respect of any tax collected or collectable by a collector, distributor or registered importer on or after January 1, 1999, whether or not the security interest was acquired before that date.  1998, c. 30, s. 9.

Eligibility as member of Legislative Assembly

3.7 No person is ineligible as a member of the Legislative Assembly of Ontario by reason only of being a collector under this Act.  1991, c. 49, s. 3.

3.8 Repealed:  1998, c. 30, s. 10.

Offence

3.9 (1) Every collector, distributor, registered importer, wholesaler or retail dealer who refuses or neglects to collect tax in accordance with this Act is guilty of an offence and on conviction is liable to a fine of an amount equal to 30 cents for each litre of fuel on which he, she or it refused or neglected to collect tax.  1991, c. 49, s. 3; 1998, c. 30, s. 11 (1).

Offence, coloured fuel

(2) Every collector, distributor or registered dyer who sells, as coloured fuel, fuel to which dye has not been added in accordance with the regulations is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $10,000 plus an amount equal to three times the tax that would be payable under section 2 if the fuel were clear fuel sold to a purchaser in Ontario.  1991, c. 49, s. 3; 1998, c. 30, s. 11 (2).

Registered importer

4. (1) No person shall bring or cause to be brought into Ontario fuel in bulk unless the person is registered by the Minister as an importer.  1991, c. 49, s. 4 (2).

Application of subs. (1)

(2) Subsection (1) does not apply to,

(a) an importer who has remitted security in respect of the tax imposed by this Act (subsection 11 (7)) and delivered a return (subsection 11 (9)) in respect of the fuel imported; or

(b) an importer of clear fuel that was coloured in accordance with the regulations at the time of entry into Ontario.  1991, c. 49, s. 4 (2).

Exemption

(3) A registered importer is exempt from the application of subsection 11 (7) (remittance of security) and subsection 11 (9) (delivery of return).  1991, c. 49, s. 4 (2).

Application

(4) Subject to section 9, every person who imports fuel in bulk into Ontario is entitled to be registered as an importer and to be issued a certificate of registration upon application in the form approved by the Minister.  1991, c. 49, s. 4 (2); 1997, c. 19, s. 7 (1).

Penalty, unregistered importer

(4.1) Every person who operates as an importer in Ontario without being registered under this section shall pay a penalty, when assessed for it, equal to 110 per cent of the tax that would be payable under section 2 had the fuel that the person imported into Ontario during the period when the person was not registered been sold to a consumer liable to pay tax under this Act.  2006, c. 33, Sched. K, s. 1.

Offence, unregistered importer

(5) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable, in addition to any other penalty under this Act, to a fine of not less than $200 and not more than $10,000 plus an amount equal to three times the tax payable under section 2 on the fuel brought into Ontario by the person.  1991, c. 49, s. 4 (2).

Offence, condition or limitation

(6) Every registered importer who contravenes a condition or limitation attached to the certificate of registration issued to the registered importer is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $10,000.  1991, c. 49, s. 4 (2).

Export of fuel

4.1 (1) No person shall take or cause to be taken out of Ontario fuel in bulk unless the person is registered by the Minister as an exporter.  1991, c. 49, s. 4 (2).

Application

(2) Subject to section 9, every person who proposes to take or cause to be taken out of Ontario fuel in bulk is entitled to be registered as an exporter and to be issued a certificate of registration upon application in the form approved by the Minister.  1991, c. 49, s. 4 (2); 1997, c. 19, s. 7 (1).

Penalty, unregistered exporter

(3) Every person who operates as an exporter in Ontario without being registered under this section shall pay a penalty, when assessed for it, equal to the amount of tax that would be payable under section 2 had the fuel that the person exported out of Ontario during the period when the person was not registered been sold to a consumer liable to pay tax under this Act.  2006, c. 33, Sched. K, s. 2.

Conditions and limitations

4.2 (1) The Minister may attach such reasonable conditions and limitations to a registration as an importer or exporter as the Minister considers appropriate.

Application of subs. (1)

(2) Subsection (1) applies in respect of a proposed registration and in respect of an existing registration.  1991, c. 49, s. 4 (2).

Collection of tax by importer

4.3 (1) Every registered importer shall collect the tax imposed by this Act from every person to whom the registered importer sells clear fuel.  1991, c. 49, s. 4 (2).

Remittance to Minister

(2) Every registered importer shall remit to the Minister, at the prescribed times and in the prescribed manner, the tax collectable by the registered importer.  1991, c. 49, s. 4 (2); 1998, c. 30, s. 12.

Payment to Minister

(3) Every registered importer shall pay to the Minister the tax imposed by this Act upon the registered importer as a purchaser.  1991, c. 49, s. 4 (2); 1994, c. 18, s. 2 (5).

Exception

(4) Subsection (1) does not apply to require a registered importer to collect the tax from a collector in respect of clear fuel if the collector is not a purchaser of the clear fuel.

Registered importer is agent

(5) For the purposes of collecting the tax imposed by this Act, every registered importer is an agent of the Minister.

Importer deemed registered

(6) Every importer who has complied with subsection 11 (7) shall be deemed to be a registered importer for the purpose of collecting the tax payable on the clear fuel that was imported into Ontario from outside Canada.  1991, c. 49, s. 4 (2).

Notice of change, importer or exporter

4.4 (1) Every person who is an importer or exporter shall notify the Minister in writing of,

(a) any change in the name of the importer or exporter;

(b) any change in the business address of the importer or exporter;

(c) any change in the nature of the business of the importer or exporter; or

(d) the termination of the business of the importer or exporter.

Transmittal

(2) The notice required by subsection (1) shall be transmitted to the Minister forthwith upon the happening of the change or termination.  1991, c. 49, s. 4 (2).

Importing for use as other than clear fuel

4.5 (1) No person shall import clear fuel into Ontario for use as other than clear fuel.

Exception

(2) Subsection (1) does not apply if the clear fuel is coloured in the prescribed manner before it is sold or transferred by the person to an importer, wholesaler, retail dealer or purchaser.  1991, c. 49, s. 4 (2).

Certificate to be carried

4.6 (1) Every driver of a motor vehicle operated by or on behalf of an interjurisdictional transporter who is a registered importer or a registered exporter shall carry the original or a true copy of the certificate of registration issued to the registered importer or registered exporter and shall surrender the certificate or true copy upon demand by a person who is a member of a class prescribed for the purposes of this section.  1991, c. 49, s. 4 (2); 2004, c. 31, Sched. 15, s. 1; 2006, c. 33, Sched. K, s. 3.

Delivery of copy to interjurisdictional transporter

(2) A registered importer or a registered exporter shall provide to each interjurisdictional transporter that the registered importer or registered exporter engages to transport fuel a true copy of the certificate of registration issued under this Act to the registered importer or registered exporter.  1991, c. 49, s. 4 (2); 2004, c. 31, Sched. 15, s. 1.

Security by interjurisdictional transporter

4.7 (1) Every interjurisdictional transporter who transports clear fuel into Ontario on behalf of an importer shall remit on behalf of the importer the security, tax and return required by subsections 11 (7) and (9), and, for the purposes of those subsections, the interjurisdictional transporter shall be deemed to be the importer.  1991, c. 49, s. 4 (2).

Exception

(2) Subsection (1) does not apply if the importer is a registered importer and has delivered to the interjurisdictional transporter a true copy of the certificate of registration issued to the importer under this Act.  1991, c. 49, s. 4 (2); 2004, c. 31, Sched. 15, s. 2.

Export of fuel

4.8 (1) Every exporter shall transmit to the Minister (in the form and manner required by the Minister) information in respect of fuel in bulk that the exporter delivers or causes to be delivered to a person outside Ontario.  1998, c. 30, s. 13 (1).

(2) Repealed:  1997, c. 19, s. 7 (2).

Evidence of export and delivery

(3) Every exporter who delivers or causes to be delivered fuel in bulk to a person outside Ontario shall provide to the Minister evidence that the fuel has been taken out of Ontario and of the delivery of the fuel outside Ontario.  1991, c. 49, s. 4 (2).

Penalty

(4) Every exporter who fails to comply with subsection (1) or (3) shall pay to the Minister a penalty equal to the amount of tax that would be payable under this Act in respect of the fuel if the fuel were clear fuel sold to a purchaser who is liable to pay tax under clause 2 (1) (b).  2005, c. 31, Sched. 7, s. 2.

Payment of penalty

(5) The penalty under subsection (4) is payable when it is assessed.  1991, c. 49, s. 4 (2).

Offence, unregistered exporter

4.9 Every person who contravenes subsection 4.1 (1) is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $10,000 plus an amount equal to three times the tax that would be payable under section 2 in respect of the fuel if the fuel were clear fuel sold to a purchaser who is liable to pay tax under clause 2 (1) (b).  2005, c. 31, Sched. 7, s. 3.

Offence, exporter

4.10 Every exporter who contravenes a condition or limitation attached to the exporter’s registration by the Minister is guilty of an offence and on conviction is liable, in addition to any other penalty under this Act, to a fine of not less than $200 and not more than $10,000.  1991, c. 49, s. 4 (2).

Registered consumer

4.11 (1) A registered consumer may pay the tax imposed by this Act in accordance with the terms of the fuel acquisition permit issued to the registered consumer instead of making payment to a collector or distributor at the time of purchase.  1991, c. 49, s. 4 (2); 1998, c. 30, s. 14.

Application for fuel acquisition permit

(2) Subject to section 9, every person who will be acquiring fuel principally to be disposed of or consumed in the manner prescribed for the purposes of this subsection may apply to the Minister in the form approved by the Minister to be issued a fuel acquisition permit.  1994, c. 18, s. 2 (9); 1997, c. 19, s. 7 (1).

Railways

(2.1) Subject to section 9, every person who operates railway equipment on rails in Ontario in connection with and as part of a public transportation system must be a registered consumer.  2008, c. 19, Sched. H, s. 2.

Conditions and limitations

(3) The Minister may attach such conditions and limitations as he or she considers appropriate to a new fuel acquisition permit or an existing fuel acquisition permit, including a condition that the applicant or holder provide information, documents or other evidence of the use or intended use of the clear fuel acquired or to be acquired under the permit.  1994, c. 18, s. 2 (9).

Application of subs. (3)

(4) Subsection (3) applies in respect of a proposed fuel acquisition permit and in respect of an existing fuel acquisition permit.  1991, c. 49, s. 4 (2).

Time limit

(5) For the purposes of subsection (3), the Minister may limit the period during which a fuel acquisition permit is in effect.  1994, c. 18, s. 2 (10).

Offence, registered consumer

4.12 Every registered consumer who contravenes a condition or limitation of the fuel acquisition permit issued to the registered consumer is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $10,000.  1991, c. 49, s. 4 (2).

Interjurisdictional carrier

4.13 (1) No person shall act as an interjurisdictional carrier unless the person is registered with the Minister.

Registration

(2) For the purposes of subsection (1), an interjurisdictional carrier shall apply, in such circumstances as the Minister may prescribe, for,

(a) an annual registration certificate; or

(b) an Ontario trip registration certificate.  1996, c. 10, s. 2.

Application

(3) Subject to section 9, every person who proposes to act as an interjurisdictional carrier is entitled to be registered as such and to be issued a registration certificate or an Ontario trip registration certificate, as the case may be, upon application in the form provided by the Minister and payment of the fees established by the Minister.  1996, c. 10, s. 2; 1997, c. 19, s. 7 (3).

Registration decals

(4) Every interjurisdictional carrier who is registered by the Minister under clause (2) (a) is entitled to be issued registration decals upon application in the form provided by the Minister and payment of the fees established by the Minister.  1996, c. 10, s. 2; 1997, c. 19, s. 7 (3).

Conditions and limitations

(5) The Minister may attach such reasonable conditions and limitations to the registration of an interjurisdictional carrier as the Minister considers appropriate.

Application of subs. (5)

(6) Subsection (5) applies in respect of a proposed registration and in respect of an existing registration of an interjurisdictional carrier.  1991, c. 49, s. 5 (1).

Notice of change, interjurisdictional carrier

4.14 (1) Every person who is an interjurisdictional carrier shall notify the Minister in writing of,

(a) any change in the name of the interjurisdictional carrier;

(b) any change in the business address of the interjurisdictional carrier;

(c) any change in the nature of the business of the interjurisdictional carrier; or

(d) the termination of the business of the interjurisdictional carrier.

Transmittal

(2) The notice required by subsection (1) shall be given to the Minister forthwith upon the happening of the change or termination.  1991, c. 49, s. 5 (1).

Communication re refund to broker driver

4.15 The Minister may communicate to, furnish to or receive from an interjurisdictional carrier or a broker driver any information necessary to ascertain whether any tax imposed by this Act is refundable to the broker driver.  1991, c. 49, s. 5 (1).

Offence, interjurisdictional carrier

4.16 (1) Every person who contravenes subsection 4.13 (1) (interjurisdictional carrier) or 4.13 (2) (trip registration) is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $2,000 plus a fine in an amount equal to the amount of the tax that should have been paid or remitted by the interjurisdictional carrier.

Idem, condition or limitation

(2) Every interjurisdictional carrier who contravenes a condition or limitation attached to the registration of the interjurisdictional carrier under this Act is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $2,000.

Idem, registration decal

(3) Every operator of a motor vehicle to which a valid registration decal is not affixed when so required under this Act or the regulations is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $1,000.  1991, c. 49, s. 5 (1).

Registered dyer

4.17 (1) No person shall colour fuel unless the person is registered by the Minister as a dyer.  1991, c. 49, s. 5 (2).

Application

(2) Subject to section 9, every collector who proposes to colour fuel is entitled to be registered as a dyer and to be issued a certificate of registration upon application in the form approved by the Minister if the collector,

(a) owns or operates a terminal or northern terminal that the Minister has specified and the collector uses as a dye-point; and

(b) has total sales of coloured fuel from all dye-points owned or operated by the collector equal to or in excess of the prescribed percentage of the collector’s total sales of coloured fuel during the calendar year before the person’s application for registration.  1991, c. 49, s. 5 (2); 1997, c. 19, s. 7 (1).

Distributor as registered dyer

(2.1) Subject to section 9, every distributor who proposes to colour fuel is entitled to be registered as a dyer and to be issued a certificate of registration upon application (on the form provided by the Minister),

(a) if the distributor owns or operates a facility for the purposes of colouring fuel; and

(b) if the distributor has total sales of coloured fuel from all facilities owned or operated by the distributor that are greater than or equal to the prescribed percentage of the distributor’s total sales of coloured fuel during the calendar year preceding the year in which the distributor applies for registration.  1998, c. 30, s. 15.

Cancellation of registration

(3) The Minister may cancel a person’s registration as a dyer at the end of any twelve-month period during which the person’s total sales of coloured fuel from all dye-points owned or operated by the person are less than the prescribed percentage of the person’s total sales of coloured fuel.

Conditions and limitations

(4) The Minister may attach such reasonable conditions and limitations to a registration as a dyer as the Minister considers appropriate.

Application of subs. (4)

(5) Subsection (4) applies in respect of a proposed registration and in respect of an existing registration.  1991, c. 49, s. 5 (2).

Dye-points

4.18 (1) The Minister may specify the number and location of dye-points that a registered dyer may establish and operate.  1991, c. 49, s. 5 (2).

Dye held in trust

(2) Every registered dyer who possesses dye is deemed to hold the dye in trust for Her Majesty in right of Ontario for use in accordance with this Act and the regulations and is accountable for all dye at the time and in the manner provided by this Act and the regulations.  1991, c. 49, s. 5 (2).

Notification

(3) Every registered dyer shall forthwith notify the Minister in writing of all changes in the name or nature of the registered dyer’s business or of the termination of the business.  1991, c. 49, s. 5 (2).

Use of dye

(4) Every registered dyer shall use only dye provided by the Minister and shall do so in the manner, with the equipment and using the methods and procedures required under this Act to colour fuel.  1998, c. 30, s. 16 (1).

Exception

(4.1) Despite subsection (4), a registered dyer may do the following things to fuel destined for export from Canada, if the registered dyer obtains the prior written consent of the Minister to do so:

1. Manually blend dye with the fuel.

2. Blend dye with the fuel using a different quantity of dye from the quantity established by the Minister for the purposes of the definition of “colouring” in subsection 1 (1).  1998, c. 30, s. 16 (2).

Conditions of consent

(4.2) The Minister may give his or her consent for the purposes of subsection (4.1) and may impose such conditions and restrictions on the registered dyer as he or she considers reasonable in the circumstances, including requiring the dyer to reimburse the Minister for the cost of the dye used to colour the fuel destined for export from Canada.  1998, c. 30, s. 16 (2).

Same

(4.3) If the registered dyer is required to reimburse the Minister for the cost of dye as described in subsection (4.2), the amount the dyer is required to pay shall be deemed to be tax payable under this Act by the dyer and shall be paid to the Minister on or before the 25th day of the month following the month in which the dyer uses the dye.  1998, c. 30, s. 16 (2).

Equipment testing

(5) In order to ensure compliance with this Act and the regulations, any person authorized for the purpose by the Minister may shut down and test any equipment used to colour, store, transport or deliver coloured fuel.  1991, c. 49, s. 5 (2); 2001, c. 23, s. 91.

Offence

4.19 (1) Every registered dyer who refuses or neglects to colour fuel as required by this Act and the regulations is guilty of an offence and on conviction is liable to a fine of not less than $50,000 and not more than $1,000,000.  1991, c. 49, s. 5 (2); 1998, c. 30, s. 17; 2001, c. 23, s. 92.

Offence, unregistered dyer

(2) Every person who operates as a dyer of fuel without holding a subsisting certificate of registration as a dyer under this Act is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $10,000 plus an amount equal to three times the tax that would be payable under section 2 had the fuel sold by the person during the period the person did not hold the certificate of registration been clear fuel sold to a purchaser in Ontario.  1991, c. 49, s. 5 (2).

Offence, condition or limitation

(3) Every registered dyer who contravenes a condition or limitation in the certificate of registration issued to the registered dyer is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $10,000.  1991, c. 49, s. 5 (2).

Detention and examination of motor vehicle or vessel

5. (1) For the purpose of ascertaining,

(a) whether tax imposed by this Act has been paid on clear fuel contained in a fuel tank of a motor vehicle or vessel or whether a fuel tank of a motor vehicle or vessel contains coloured fuel;

(b) whether any tax imposed by this Act is payable on such fuel; or

(c) whether the operator of a motor vehicle is an interjurisdictional carrier whose motor vehicle carries a valid registration decal or is required to carry such a registration decal under the regulations,

any person authorized for the purpose by the Minister may, without a warrant, if the person has reasonable and probable grounds to believe that a motor vehicle referred to in subsection 2 (6) or a vessel referred to in clause (2) (6) (b) contains evidence of a contravention of this Act, stop and detain the motor vehicle or vessel in Ontario, examine the motor vehicle or vessel and fuel in any fuel tank in it, take samples of the fuel,  inspect any registration decal on the motor vehicle and examine the documents in the custody of the driver of the motor vehicle or operator of the vessel related to liability for tax under this Act, the ownership of the motor vehicle or vessel and the identity of the operator of the motor vehicle or vessel and also examine any driver’s licence required under the Highway Traffic Act or any operator’s card required under the Canada Shipping Act, 2001 (Canada).  2008, c. 19, Sched. H, s. 3 (1).

Offence

(2) Every driver of a motor vehicle or operator of a vessel that may be stopped and detained under subsection (1) who,

(a) fails to comply with a stop sign set up by a person authorized by the Minister to examine any motor vehicle or vessel;

(b) fails to obey a lawful signal or request by a person authorized by the Minister to examine any motor vehicle or vessel;

(c) drives a motor vehicle to which a valid registration decal is not affixed as required under the regulations;

(d) refuses to permit the detention or examination of the motor vehicle or vessel that is under his or her control; or

(e) refuses to permit samples of fuel to be taken from a fuel tank of the motor vehicle or vessel that is under his or her control,

is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $1,000.  2008, c. 19, Sched. H, s. 3 (1).

Offence, coloured fuel

(3) Every operator of a motor vehicle to which a number plate is attached as required under the Highway Traffic Act and that is found to contain coloured fuel in a fuel tank of the motor vehicle is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $1,000.  2001, c. 23, s. 93 (1); 2008, c. 19, Sched. H, s. 3 (2).

Offence, pleasure use

(3.1) Every driver or operator of a motor vehicle described in clause 2 (6) (b) and every operator of a vessel described in that clause is guilty of an offence if it is found that a fuel tank of the motor vehicle or vessel, as the case may be, contains coloured fuel and, on conviction, is liable to a fine of not less than $200 and not more than $1,000.  2008, c. 19, Sched. H, s. 3 (3).

Burden of proof

(4) In any proceeding under subsection (3) or (3.1), it is not necessary to prove that coloured fuel was acquired and used in contravention of this Act, but only to prove that a fuel tank of a motor vehicle or vessel contained coloured fuel on the day of the examination under this section.  2008, c. 19, Sched. H, s. 3 (4).

Subsequent offence

(5) The fact that the coloured fuel found in a fuel tank of a motor vehicle or vessel is the same coloured fuel that was found in the fuel tank on another occasion that constituted an offence under subsection (3) or (3.1) is not a defence in a prosecution for a subsequent offence under either subsection if a period of more than 24 hours has elapsed since a sample of fuel was taken from the fuel tank in the motor vehicle or vessel.  2008, c. 19, Sched. H, s. 3 (4).

Offence, unauthorized fuel

(6) Every operator of a motor vehicle to which a number plate is attached as required under the Highway Traffic Act and that is found to contain unauthorized fuel in the fuel tank of the motor vehicle is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $1,000.  2001, c. 23, s. 93 (2).

Burden of proof, unauthorized fuel

(7) In any proceeding under subsection (6), it is not necessary to prove that unauthorized fuel was acquired and used in contravention of this Act, but only to prove that the fuel tank of a motor vehicle contained unauthorized fuel on the day of the examination under this section.  1998, c. 30, s. 18 (2).

Subsequent offence, unauthorized fuel

(8) The fact that the unauthorized fuel that was found in a fuel tank of a motor vehicle is the same unauthorized fuel that was found therein on another occasion that constituted an offence under subsection (6) is not a defence in a prosecution for a subsequent offence under that subsection if a period of more than 24 hours has elapsed since taking a sample of fuel from that motor vehicle.  1998, c. 30, s. 18 (2).

Authority to stop and detain commercial fuel-powered motor vehicle

5.1 (1) A person authorized by the Minister may, without a warrant, stop and detain a commercial fuel-powered motor vehicle and take one or more samples of fuel from the vehicle’s fuel tank for the purpose of determining whether the fuel tank of the vehicle contains coloured fuel or unauthorized fuel.  2004, c. 31, Sched. 15, s. 3.

Examination of documents if coloured fuel or unauthorized fuel found

(2) If a person referred to in subsection (1) has reasonable and probable grounds for believing that a sample taken under that subsection from the fuel tank of a commercial fuel-powered motor vehicle contains coloured fuel or unauthorized fuel, the person may examine the following documents:

1. The driver’s licence issued to the driver of the motor vehicle.

2. Any Commercial Vehicle Operator’s Certificate issued under the Highway Traffic Act that is held by the operator.

3. Any documents of a type prescribed by the Minister that are in the driver’s custody.

4. Any documents in the driver’s custody that identify or confirm the identity of the operator or owner of the motor vehicle.  2004, c. 31, Sched. 15, s. 3.

Authority to stop and detain interjurisdictional vehicle

(3) Any person authorized by the Minister may, without a warrant, stop and detain a motor vehicle if the person has reasonable and probable grounds to believe that the motor vehicle is an interjurisdictional vehicle and may do the following for the purposes of determining whether the operator of the motor vehicle is an interjurisdictional carrier and has complied with section 4.13:

1. Inspect any registration decal on the motor vehicle.

2. Examine the driver’s licence issued to the driver of the motor vehicle.

3. Examine any Commercial Vehicle Operator’s Certificate issued under the Highway Traffic Act that is held by the operator.

4. Examine any documents of a type prescribed by the Minister that are in the driver’s custody.

5. Examine any documents in the driver’s custody that identify or confirm the identity of the operator or owner of the motor vehicle.  2004, c. 31, Sched. 15, s. 3.

Offence, failure to stop, etc.

(4) Every driver of a commercial fuel-powered motor vehicle or interjurisdictional vehicle who does any of the following is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $1,000:

1. Fails to comply with a stop sign set up by a person authorized by the Minister under this section to stop the vehicle.

2. Fails to stop or remain stopped when signalled or requested to do so by a person authorized by the Minister under this section to stop and detain the vehicle.

3. Prohibits or otherwise interferes with the taking of a sample of fuel from the vehicle’s fuel tank under subsection (1), if the vehicle is a commercial fuel-powered motor vehicle.

4. Fails to produce any document requested or required to be produced under subsection (2) or (3).

5. Operates an interjurisdictional vehicle for which a valid registration decal is required under the regulations without the decal affixed to the vehicle.  2004, c. 31, Sched. 15, s. 3.

Definition

(5) In this section,

“commercial fuel-powered motor vehicle” means a motor vehicle,

(a) that uses fuel for the purpose of generating power by internal combustion, and

(b) that is a commercial motor vehicle as defined in subsection 1 (1) of the Highway Traffic Act.  2004, c. 31, Sched. 15, s. 3.

Invoice

6. (1) Every vendor shall inform every person to whom the vendor sells fuel in bulk of the total price of the fuel and shall deliver to the person an invoice containing the information prescribed by the Minister.  1991, c. 49, s. 7.

Liability for tax

(2) Every person who purchases fuel in bulk from a vendor without obtaining a properly completed invoice that the vendor is required to deliver under subsection (1) remains liable for any tax collectable or payable under this Act until the tax is actually paid over to a collector or distributor or to the Minister by the vendor, although the vendor is an agent of the Minister.  1991, c. 49, s. 7; 1994, c. 18, s. 2 (5); 1998, c. 30, s. 19.

Idem

(3) Every person shall obtain from the vendor from whom the person purchases fuel, other than fuel in bulk, the total price of the fuel and an invoice containing the information prescribed by the Minister.

Offence

(4) Every person who fails to comply with this section is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $1,000.  1991, c. 49, s. 7.

Records

6.1 (1) Every manufacturer, collector, distributor, importer, exporter, registered consumer, interjurisdictional carrier, interjurisdictional transporter, wholesale dealer or retail dealer shall keep at that person’s principal place of business records and books of account in such form and containing such information as will permit the accurate determination of the taxes collectable or payable under this Act.  1991, c. 49, s. 8; 1998, c. 30, s. 20; 2002, c. 22, s. 76.

Retention period

(2) Every person referred to in subsection (1) shall retain the records and books of account, as well as any other documents necessary to verify the information in the records and books of account, for a period of seven years following the end of the fiscal period to which the records and books of account relate, unless written permission for their disposal is received from the Minister.  1991, c. 49, s. 8.

Requirement

(3) The Minister may require a person who fails to comply with subsection (1) to keep such records and books of account as are specified by the Minister for such length of time as the Minister requires.  1991, c. 49, s. 8.

Offence

(4) Every person who fails to comply with subsection (3) is guilty of an offence and on conviction is liable to a fine of $50 for each day during which the default occurs or continues.  1991, c. 49, s. 8.

Demand for information, security

Information

7. (1) The Minister may demand information or additional information from a person for the purpose of evaluating the suitability of the person to be a manufacturer, collector, distributor, registered importer, registered exporter, registered dyer, registered consumer, interjurisdictional transporter or interjurisdictional carrier under this Act or to ascertain the amount of security to be furnished by the person in accordance with subsection (2) and the person shall deliver to the Minister the information or additional information the Minister requires within the time specified in the Minister’s demand.  1991, c. 49, s. 9; 1998, c. 30, s. 21 (1); 2002, c. 22, s. 77.

Security

(2) The Minister shall demand security in a form acceptable to the Minister from,

(a) every collector, in an amount not less than the equivalent of an average three months tax collectable and payable by the collector calculated for the twelve-month period preceding the date of the Minister’s demand or $1,000,000, whichever is greater;

(b) every registered importer, in an amount equal to the average three months tax collectable and payable by the importer calculated for the twelve-month period preceding the date of the Minister’s demand or $500,000, whichever is greater;

(c) every registered exporter, in an amount specified by the Minister upon the forwarding to the Minister of information required under this Act or the regulations in respect of fuel intended to be taken or to be caused to be taken out of Ontario;

(d) every registered dyer, other than a distributor, in an amount equal to the greater of $1,000,000 or the average three months tax that would be collectable and payable by the registered dyer calculated on the basis of the twelve-month period preceding the Minister’s demand if the clear fuel acquired by the registered dyer for the purpose of colouring or for any other purpose were sold to a consumer in Ontario during the twelve-month period;

(e) every registered consumer, in an amount equal to the tax that would otherwise have been payable by the registered consumer, if the registered consumer were not a registered consumer, on the average three months receipts of clear fuel calculated for the twelve-month period immediately preceding the date of the Minister’s demand or $100,000, whichever is the greater;

(f) every registered interjurisdictional carrier, in an amount not less than the equivalent of the average three months tax payable by the registered interjurisdictional carrier calculated for the twelve-month period immediately preceding the date of the Minister’s demand; and

(g) every distributor, in an amount not less than the equivalent of an average three months tax collectable and payable by the distributor calculated for the 12-month period immediately preceding the date of the Minister’s demand or $100,000, whichever is the greater.  1991, c. 49, s. 9; 1998, c. 30, s. 21 (2, 3).

Idem

(3) Every person shall, upon receipt of a demand under subsection (2), forthwith furnish the security to the Minister.  1991, c. 49, s. 9.

Idem

(4) The Minister may, at any time, increase or decrease the amount of security furnished or to be furnished under subsection (2).  1991, c. 49, s. 9.

Interjurisdictional transporter

8. (1) No person shall act as an interjurisdictional transporter unless the person is registered by the Minister as an interjurisdictional transporter.  1991, c. 49, s. 10.

Application

(2) Subject to section 9, every person who acts or proposes to act as an interjurisdictional transporter is entitled to be registered as an interjurisdictional transporter and to be issued a certificate of registration upon application in the form approved by the Minister.  1991, c. 49, s. 10; 1997, c. 19, s. 7 (1).

Conditions and limitations

(3) The Minister may attach such reasonable conditions and limitations to a registration as an interjurisdictional transporter as the Minister considers appropriate.  1991, c. 49, s. 10.

Application of subs. (3)

(4) Subsection (3) applies in respect of a proposed registration and in respect of an existing registration.  1991, c. 49, s. 10.

Offence, failure to register

(4.1) Every interjurisdictional transporter transporting or transferring fuel in bulk into or out of Ontario who is not registered as an interjurisdictional transporter under this Act is guilty of an offence and on conviction is liable to a fine of not less than $1,000 and not more than $10,000.  2002, c. 22, s. 78.

Penalty, failure to register

(4.2) Every interjurisdictional transporter transporting or transferring fuel in bulk into or out of Ontario who is not registered as an interjurisdictional transporter under this Act shall pay to the Minister, when assessed therefor, a penalty equal to the sum of $500 and 5 per cent of the tax that would be payable under this Act on all fuel transported or transferred by the transporter into or out of Ontario during the period that the transporter was not registered, calculated as if that fuel were clear fuel received or used by a purchaser liable to pay tax under clause 2 (1) (b).  2002, c. 22, s. 78.

Uniform manifest form

(5) Every interjurisdictional transporter shall complete a uniform manifest form in the form provided by the Minister in respect of every shipment of fuel in bulk transported or transferred by the interjurisdictional transporter into or out of Ontario.  1991, c. 49, s. 10.

Transporter to obtain certificate

(6) Before undertaking to transport or transfer fuel in bulk into or out of Ontario for a registered importer or a registered exporter, the interjurisdictional transporter shall obtain the true copy of the registration certificate that the registered importer or registered exporter is required to provide under this Act.  1991, c. 49, s. 10; 2004, c. 31, Sched. 15, s. 4 (1).

Possession of documents

(7) Every interjurisdictional transporter shall keep in the possession of the driver of the motor vehicle or of the master of the vessel in which the interjurisdictional transporter is transporting or transferring fuel in bulk,

(a) the interjurisdictional transporter’s certificate of registration issued under this Act;

(b) the completed uniform manifest form required by subsection (5);

(c) if the fuel in bulk is being transported or transferred for a registered importer or a registered exporter, the true copy of the certificate of registration that the registered importer or registered exporter is required to provide under this Act; and

(d) evidence of payment, if any, made under subsection 11 (7) or of the proper colouration of the fuel.  1991, c. 49, s. 10; 2004, c. 31, Sched. 15, s. 4 (1).

Detention of vehicles

(8) Any person who is authorized for the purpose by the Minister and who has reasonable and probable grounds to believe that an interjurisdictional transporter does not hold a certificate of registration or is transporting or transferring fuel on behalf of an importer or exporter who does not hold a certificate of registration issued under this Act may, without a warrant, stop and detain any vehicle or vessel operated in Ontario by the interjurisdictional transporter and require production of the documents specified in subsection (7).  1991, c. 49, s. 10.

Seizure, etc., of fuel

(9) If, following a detention under subsection (8), the driver of the motor vehicle or the master of the vessel fails to produce the documents specified in subsection (7), the person authorized for the purpose by the Minister may, without a warrant but subject to subsections (10), (11), (12) and (14), seize, impound, hold and dispose of the fuel, unless the interjurisdictional transporter complies with subsection (11).  1991, c. 49, s. 10.

No seizure, etc.

(10) Fuel is not subject to holding, seizure, impounding or disposal under this section if the driver of the motor vehicle or the master of the vessel in which the fuel is transported or transferred provides proof satisfactory to the person authorized for the purpose by the Minister,

(a) of the quantity and the destination of the fuel being transported or transferred;

(b) that the driver or master holds a certificate of registration or a true copy of a certificate of registration of the interjurisdictional transporter issued under this Act;

(c) if the fuel is being transported or transferred for an importer or exporter, that the importer or exporter holds a valid certificate of registration issued under this Act;

(d) if tax or security is payable in respect of the fuel being transported or transferred, that the tax or security has been paid; and

(e) if the fuel being transported or transferred is not clear fuel, that the fuel has been coloured in accordance with this Act and the regulations.  1991, c. 49, s. 10; 2004, c. 31, Sched. 15, s. 4 (2).

Forfeiture

(11) Fuel seized under subsection (9) is forfeited to Her Majesty to be disposed of as the Minister directs unless, within thirty days following the seizure, the person from whom the fuel is seized, or the owner of the fuel, pays to the Minister an amount, as a penalty, equal to the tax that would be payable under clause 2 (1) (b) if the fuel were clear fuel sold to a purchaser in Ontario.  1991, c. 49, s. 10; 1994, c. 18, s. 2 (5); 2005, c. 31, Sched. 7, s. 4.

Application

(12) The driver of the motor vehicle or the master of the vessel from which fuel is seized under this section, or the owner of the fuel, may bring an application in the Superior Court of Justice to establish the right to possession of the fuel.  1991, c. 49, s. 10; 2001, c. 23, s. 94 (1).

Time limit

(13) An application under subsection (12) is not valid unless made within thirty days after the date on which the fuel is seized.  1991, c. 49, s. 10.

Standards

(14) For the purposes of an application to the Superior Court of Justice, the driver, the master or the owner has the right to possession of the fuel if, when the fuel is seized,

(a) the driver or the master holds a certificate of registration or a true copy of a certificate of registration of the interjurisdictional transporter issued under this section;

(b) the fuel is being transported or transferred on behalf of an exporter who holds a certificate of registration issued under this Act;

(c) if the fuel is clear fuel being imported into Ontario, the tax or security payable under this Act has been paid or the driver, the master or the owner has complied with the regulations with respect to the importation of clear fuel for colouration; and

(d) if the driver or the master does not hold a uniform manifest form completed in accordance with this Act and the regulations, the driver or owner delivers the form so completed to the Minister within five days of the date when the fuel is seized.  1991, c. 49, s. 10; 2001, c. 23, s. 94 (2); 2004, c. 31, Sched. 15, s. 4 (2).

Order

(15) The court, if satisfied that the driver, the master or the owner has the right to possession of the fuel, may order that the fuel be returned to the driver, the master or owner or that the proceeds of sale of the fuel be paid to the owner.  1991, c. 49, s. 10.

Disposal pending final disposition

(16) If the application is not finally disposed of within sixty days after the date on which it is made, the Minister may dispose of the fuel and retain the proceeds of the sale pending final disposition of the application.  1991, c. 49, s. 10.

Forfeiture of fuel

(17) If the application is dismissed and any appeal is dismissed or the time for appeal has expired, the fuel is forfeited to Her Majesty in right of Ontario to be disposed of as the Minister directs.  1991, c. 49, s. 10.

Proceeds of sale

(18) If a sale of fuel is directed under subsection (11) or (17), or if the proceeds of a sale are retained under subsection (16) and the application is dismissed, the proceeds of the sale remaining after payment of the costs incurred by the Minister in seizing, storing and disposing of the fuel and after payment of the penalty owing under subsection (11) shall be paid to the person from whom the fuel was seized or to the person who owned the fuel before it was forfeited.  1991, c. 49, s. 10.

Offence

(19) Every interjurisdictional transporter transporting or transferring fuel in bulk into or out of Ontario who fails to produce any of the documents required to be kept in the possession of the driver or the master under subsection (7) is guilty of an offence and on conviction is liable to a fine of not less than $150 and not more than $1,000 for each document not produced.  1991, c. 49, s. 10.

Refusal to designate or register

9. (1) The Minister may refuse to designate or register any person or to issue a permit to any person under this Act if the person fails to satisfy the Minister that the person has the ability to perform the conditions or observe the limitations that the Minister proposes to attach to the designation, registration or permit.

Idem

(2) The Minister may refuse to designate or register any person or to issue a permit to any person under this Act if the person fails to furnish security in accordance with section 7.

Suspension or cancellation

(3) The Minister may suspend or cancel the designation or registration of a person under this Act or a permit issued to a person under this Act if,

(a) the person or any officer, director, shareholder or partner of the person has been convicted of an offence of fraud or tax evasion within the preceding five years; or

(b) the person contravenes or permits the contravention of this Act or the regulations or of any condition or restriction contained in the designation, registration certificate or permit.  2005, c. 31, Sched. 7, s. 5.

Hearing

(4) If the Minister proposes to act under subsection (1), (2) or (3), the Minister shall afford the person the opportunity to appear before the Minister to show cause why the Minister should not so act.

Immediate suspension

(5) Despite subsection (4), the Minister may suspend forthwith the designation of, permit issued to, or registration of any person under this Act if the person fails to deliver a return required by this Act or the regulations or fails to remit tax collectable or payable by the person under this Act.

Notice of suspension

(6) A suspension forthwith shall be by notice in writing with written reasons, and shall state that the person may, by notice in writing served on the Minister within 180 days after service of the notice of suspension, require a hearing by the Minister to determine whether the suspension should be rescinded, rescinded subject to conditions, or whether the designation, permit or registration should be cancelled, and the person may so require the hearing.

Service of notice

(7) A notice under this section may be served personally or by registered mail addressed to the person to whom notice is to be given at the person’s last known address.

Idem

(8) Service by registered mail of a notice under this section shall be deemed to have been made on the fifth day after the day of mailing unless the person establishes that, though acting in good faith, the person did not receive the notice or did not receive it until a later date.

Conviction for fraud or tax evasion

(9) The Minister may refuse to designate or register any person or to issue a permit to any person under this Act if the person or an officer, director, shareholder or partner of the person has been convicted of the offence of fraud or tax evasion within five years of the date of the application for the designation, registration or permit, and subsection (4) does not apply in respect of the refusal.  1991, c. 49, s. 11.

Returns

10. (1) Every person who is a manufacturer, collector, distributor, registered importer, registered exporter, registered dyer, interjurisdictional carrier, interjurisdictional transporter or registered consumer shall deliver to the Minister such return as the Minister requires for the purposes of this Act,

(a) at the prescribed time and in the prescribed manner; and

(b) on or before the date designated in a notice or demand by the Minister, if the Minister serves or causes to be served a notice or demand, either personally or by registered mail, upon the person.  1991, c. 49, s. 12 (1); 1998, c. 30, s. 22; 2002, c. 22, s. 79 (1).

Verification of returns

(2) Every return required under subsection (1) shall be verified by the certificate of the person referred to in subsection (1) delivering the return or, if not an individual, of the president, resident manager or representative in Ontario of the person that the financial and other statements of information included in or attached to the return are in agreement with the records of the person and contain correctly and completely all information for the period covered by the return.  1991, c. 49, s. 12 (1).

Offence, failure to deliver a return

(3) Every person who fails to deliver a return as required by subsection (1) is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $5,000.  2002, c. 22, s. 79 (2).

Penalty, failure to deliver a return

(3.1) Every person who is a collector, distributor, registered importer, registered exporter, registered dyer, interjurisdictional carrier or registered consumer who fails to deliver a return as required by subsection (1) shall pay to the Minister, when assessed therefor, a penalty equal to 10 per cent of the tax collectable or 5 per cent of the tax payable, as the case may be, by the person for the period covered by the return, whether or not the failure to file the return was caused by a person acting as an agent under subsection (7).  2002, c. 22, s. 79 (2).

Same, manufacturer

(3.2) Every person who is a manufacturer who fails to deliver a return as required by subsection (1) shall pay to the Minister, when assessed therefor, a penalty of $1,000 for each month covered by the return and $1,000 for each month or part thereof that the return is late.  2002, c. 22, s. 79 (2).

Same, interjurisdictional transporter

(3.3) Every person who is an interjurisdictional transporter who fails to deliver a return as required by subsection (1) shall pay to the Minister, when assessed therefor, a penalty of $1,000, whether or not the failure to file the return was caused by a person acting as an agent under subsection (7).  2002, c. 22, s. 79 (2).

Offence, failure to complete information

(4) Every person who fails to complete the information required in a return under subsection (1) is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $5,000.  2002, c. 22, s. 79 (3).

Penalty, failure to remit tax with a return

(4.1) Every person who fails to remit with their return under subsection (1) the tax collectable or the tax payable, as the case may be, by the person shall pay to the Minister, when assessed therefor, a penalty equal to 10 per cent of the tax collectable or 5 per cent of the tax payable, as the case may be, by the person for the period covered by the return, whether or not the failure to remit the tax was caused by a person acting as an agent under subsection (7).  2002, c. 22, s. 79 (3).

Time for making returns

(5) The Minister may enlarge the time for making any return before or after the time for making it.  R.S.O. 1990, c. F.35, s. 10 (5).

Declarations and affidavits

(6) Declarations and affidavits in connection with returns under this Act may be taken before any person having authority to administer an oath, or before any person specially authorized for that purpose by the Lieutenant Governor in Council, but any person so specially authorized shall not charge a fee therefor.  R.S.O. 1990, c. F.35, s. 10 (6).

Compliance by agent

(7) Compliance with subsections (1) and (2) may be carried out by a person with whom the person referred to in subsection (1) has entered into a written agreement under which the first person is authorized to act as an agent to prepare and deliver to the Minister the return required by subsection (1), but this subsection applies only if the first person has been granted and exercises power of attorney to verify the return in the manner required by subsection (2) for the period the agreement is in force.  1991, c. 49, s. 12 (2).

(8) Repealed:  1994, c. 18, s. 2 (12).

Transmission of tax

11. (1) Every collector, distributor, registered importer, registered consumer or interjurisdictional carrier shall transmit with the return required by section 10 the amount of the tax payable or the amount of the tax payable and collectable, as the case may be, by him, her or it.  1998, c. 30, s. 23 (1); 2001, c. 23, s. 95 (1).

(2) Repealed:  1994, c. 18, s. 2 (13).

Where refund of tax claimed

(3) Where, in a return delivered by a collector or interjurisdictional carrier in accordance with this Act and the regulations, it is shown that tax under this Act is payable by the collector or interjurisdictional carrier with respect to their use of fuel, and, where, at the time such return is delivered to the Minister, the collector or interjurisdictional carrier also applies for a refund under section 21 of some or all of such tax on fuel so used, the applicant may, despite subsection (1), retain the amount of the refund claimed until the refund applied for is, in whole or in part, approved or refused by the Minister and notification thereof is sent to the applicant, and, upon receiving a statement of disallowance for all or part of the refund claimed, the collector or interjurisdictional carrier shall, with the next return or at such earlier time as is specified in the statement of disallowance, whether or not an objection or appeal from the statement of disallowance is made or taken, transmit to the Minister any amount a refund of which has been refused together with interest thereon at the rate prescribed for the period during which such amount has been retained by the collector or interjurisdictional carrier, and, upon being notified of the approval of the refund of any amount a refund of which has been claimed, the collector or interjurisdictional carrier may, subject to subsection (4), retain the amounts so approved.  R.S.O. 1990, c. F.35, s. 11 (3); 1991, c. 49, s. 13 (2); 1994, c. 18, s. 2 (6).

Offence

(4) Every person who is required to pay over to a collector, distributor or importer or to remit to the Minister the tax imposed by this Act and who fails to pay over or to remit the tax collected by the person is guilty of an offence and on conviction is liable to a fine of not less than an amount equal to 25 per cent of the tax and not more than an amount equal to double the amount of the tax collected and not paid over or remitted.  1991, c. 49, s. 13 (3); 1994, c. 18, s. 2 (6); 1998, c. 30, s. 23 (2).

(5) Repealed:  1991, c. 49, s. 13 (4).

(6) Repealed:  1991, c. 49, s. 13 (4).

Security

(7) At the time of entry into Ontario from outside Canada of clear fuel, every importer who is not a registered importer shall remit to the Minister,

(a) an amount as security equal to the tax under this Act that the importer would be obliged to collect on such clear fuel upon resale of the fuel in Ontario; and

(b) the tax payable by the importer under section 2.  1991, c. 49, s. 13 (5); 1994, c. 18, s. 2 (6).

Payment

(8) The remittance required by subsection (7) shall be made to a person authorized by the Minister and the authorized person shall forward it to the Minister in accordance with the requirements imposed by the Minister when giving the authorization.  2001, c. 23, s. 95 (2).

Returns

(9) Every importer shall, at the time and in the manner prescribed, deliver to the Minister or to a person authorized by the Minister a return with respect to the fuel imported by the importer.  R.S.O. 1990, c. F.35, s. 11 (9).

Interest

11.1 (1) If on a particular date a debt as calculated under subsection (2) is payable by any person, the person shall be charged interest payable to the Minister at the prescribed rate and calculated in the prescribed manner on the amount of the debt from that date to the date the amount is received by the Minister.  1994, c. 18, s. 2 (14).

Amount of debt calculation

(2) In this section, the amount of the debt payable by a person under this Act as of a particular date is the amount by which,

(a) the aggregate of,

(i) all tax under this Act that is collectable or that is payable, or both, by the person before that date,

(ii) all amounts or penalties or both assessed under this Act against the person at any time before that date,

(iii) all refunds taken under subsection 11 (3) that are disallowed by the Minister in respect of a period of time ending before that date,

(iii.1) all amounts paid on behalf of the Minister under section 21.1 or received under that section in respect of tax paid, to the extent that the Minister subsequently disallows the amounts in respect of a period before that date, and

(iv) the total of all amounts charged under this section against the person in respect of a period of time ending before that date,

exceeds,

(b) the aggregate of,

(i) the amount of all taxes remitted or paid by the person under this Act and the amount of any refund owing under any other Act that has been applied by the Minister to the person’s liabilities under this Act prior to that date,

(ii) the amount of all refunds taken under subsection 11 (3) before that date,

(ii.1) all amounts paid on behalf of the Minister under section 21.1 before that date or received under that section in respect of tax paid before that date, and

(iii) the total of all amounts of interest credited to the person in respect of a period of time ending before that date.  1994, c. 18, s. 2 (14); 1998, c. 30, s. 24.

Compounding

(3) The interest under subsection (1) shall be compounded daily to the date on which it is paid.

Minimum liability

(4) Where the amount of interest is less than a minimum amount to be determined from time to time by the Minister, no interest shall be paid under this section.

Interest on penalties

(5) For the purposes of this section, interest on all penalties imposed by this Act shall be calculated from the date that the default to which they apply first occurred.  1994, c. 18, s. 2 (14).

Note: Section 11.1 applies in determining the amount of interest in respect of any day that is on or after January 1, 1995 and, for the purposes of determining the amount of interest in respect of any prior period, subsection 11 (2) applies as it read on December 31, 1994.  See:  1994, c. 18, s. 2 (30).

Minister may demand information

12. (1) If the Minister, in order to assess the tax collectable or payable by any person under this Act or for any other purpose, desires any information or additional information, or a return from any person who has not made a return or a complete or sufficient return, the Minister may, by registered letter, demand from such person or from the president, manager, secretary, or any director, agent or representative of any person, such information, additional information or return, and the person upon whom the demand is made shall deliver to the Minister the information, additional information or return within the time specified in the registered letter.  R.S.O. 1990, c. F.35, s. 12 (1).

Production of letters, accounts, etc.

(2) The Minister may, by registered letter, require the production under oath or otherwise by any manufacturer, collector, distributor, importer, registered consumer, interjurisdictional carrier, registered dyer, exporter, interjurisdictional transporter or purchaser, or by the president, manager, secretary, or any director, agent or representative of any of them, or by any person, partnership or trust who has been, is or may become indebted to such manufacturer, collector, distributor, importer, registered consumer, interjurisdictional carrier, registered dyer, exporter, interjurisdictional transporter or purchaser, or by any partner, agent or official of any such person, partnership or trust, of any letters, accounts, invoices, statements or other documents.  R.S.O. 1990, c. F.35, s. 12 (2); 1991, c. 49, s. 14; 1998, c. 30, s. 25; 2002, c. 22, s. 80.

Deemed receipt of registered letter

(2.1) A registered letter sent to a person or entity under subsection (1) or (2) is deemed to have been received on the fifth day after the day of mailing unless the person or entity establishes that, although acting in good faith, the person or entity did not receive it or did not receive it until a later date.  2011, c. 9, Sched. 16, s. 1.

Records to be kept

(3) If a person fails or refuses to keep adequate books of account for the purpose of ascertaining the amount of tax payable by the person or payable and collectable by the person, as the case may be, the Minister may require such person to keep such records and accounts as the Minister specifies for such length of time as the Minister requires.  R.S.O. 1990, c. F.35, s. 12 (3).

Penalty

(4) For every default in complying with subsection (1), (2) or (3), the person in default is guilty of an offence and on conviction is liable to a fine of $50 for each day during which the default continues.  R.S.O. 1990, c. F.35, s. 12 (4).

Assessment

13. (1) If a person fails to make a return or a remittance as required under this Act or if the person’s returns are not substantiated by the person’s records, the Minister may make an assessment of the amount of tax collected by the person as agent for the Minister or the tax payable by the person, for which the person has not accounted, and the amount shall be deemed to be the tax collected or the tax payable, as the case may be.  1991, c. 49, s. 15 (1).

Same

(2) The Minister may, at any time the Minister considers reasonable, assess against any person any tax collectable, collected or payable by the person or any penalty that the Minister may assess under this Act against the person.  1998, c. 30, s. 26 (1); 2001, c. 23, s. 96 (1).

Same

(2.1) The Minister may, at any time the Minister considers reasonable, send a notice of assessment of a tax or a penalty assessed by the Minister under this Act against a person and the person shall transmit the amount assessed forthwith to the Minister.  1998, c. 30, s. 26 (1).

Assessment on inspection

(3) Where it appears from an inspection, audit or examination of the books of account, records or documents of any collector, distributor, importer, registered consumer, interjurisdictional carrier or purchaser that this Act or the regulations have not been complied with, the person making the inspection, audit or examination shall calculate the tax collected or payable in such manner and form and by such procedure as the Minister considers adequate and expedient, and the Minister shall assess the amount of tax collected or payable.  R.S.O. 1990, c. F.35, s. 13 (3); 1998, c. 30, s. 26 (2).

Same, manufacturers

(3.1) Where it appears from an inspection, audit or examination of the books of account, records or documents of any manufacturer that this Act or the regulations have not been complied with, the Minister may assess a penalty against the manufacturer in an amount equal to the tax that would be payable under this Act on the volume of fuel that the manufacturer failed to report, calculated as if that fuel were clear fuel received or used by a purchaser liable to pay tax under clause 2 (1) (b).  2002, c. 22, s. 81 (1).

Assessment for dye costs

(4) The Minister may at any time the Minister considers reasonable assess against a collector or distributor the costs of any dye provided in accordance with this Act or the regulations for which the collector or distributor cannot account when required to do so and for any dye which is misused by reason of its mixture with fuel in quantities other than the quantities established by the Minister.  R.S.O. 1990, c. F.35, s. 13 (4); 1998, c. 30, s. 26 (3, 4).

Assessment re amounts held in trust

(4.1) The Minister may assess the amount that a person is responsible to pay under subsection 3.6.1 (6) and the assessed amount shall be deemed to be tax collectable or collected, as the case may be, by the person.  2001, c. 23, s. 96 (2).

Penalty for excess losses

(4.2) Every person who has excess unverifiable losses, determined in accordance with the regulations, shall pay a penalty, when assessed therefor, equal to the tax that would have been collectable by the person if the quantity of fuel that exceeds the prescribed threshold for an unverifiable loss had been sold to a purchaser liable to pay tax under this Act.  2001, c. 23, s. 96 (2).

Penalty for failure to collect tax

(5) The Minister may assess a penalty against every person who fails to collect tax that the person is responsible to collect under this Act or the regulations equal to,

(a) the amount that the person failed to collect; and

(b) an additional amount equal to 10 per cent of the amount referred to in clause (a).  1994, c. 18, s. 2 (15).

Note:  Subsection 13 (5) applies with respect to any failure to collect tax required to be collected on or after February 1, 1995.  See:  1994, c. 18, s. 2 (29).

(5.1) Repealed:  2002, c. 22, s. 81 (2).

Deemed tax

(5.2) A debt due to the Crown under section 8.1 of the Financial Administration Act in respect of a payment or remittance under this Act shall be deemed, when the Minister so assesses, to be tax payable under this Act by the person from whom the payment or remittance is payable, and may be collected and enforced as tax under this Act, except that section 14 does not apply.  1994, c. 18, s. 2 (16).

Erroneous refunds

(6) The Minister may assess under this section any person who has received a refund under this Act or the regulations and who is not entitled to such refund, and such assessment shall be for the amount of the refund to which the person is not entitled and interest thereon at the prescribed rate from the date of payment of the erroneous refund, and shall be accompanied by a brief statement in writing of the grounds upon which the person assessed is claimed not to be entitled to the amount claimed in the assessment.  R.S.O. 1990, c. F.35, s. 13 (6); 1991, c. 49, s. 15 (2).

Disallowance of refund

(7) Where a person has, in accordance with this Act and the regulations, applied for or taken a refund under this Act or the regulations, and the claim is in whole or in part refused, the Minister shall cause to be served on such person a statement of disallowance in such form as the Minister shall approve, and the statement shall specify the amount of the disallowance and the reasons therefor.  R.S.O. 1990, c. F.35, s. 13 (7); 1997, c. 19, s. 7 (4).

Notice of assessment

(8) A statement under subsection (7) or a notice of assessment made under this section may be served by sending such statement or notice by prepaid mail to the person whose claim is refused or against whom an assessment is made under this section, as the case may be, at the person’s last known address or by personal service.  R.S.O. 1990, c. F.35, s. 13 (8).

Payment of tax and penalty assessed

(9) Any person assessed shall pay to the Minister the amount assessed whether or not an objection to or appeal from the assessment is outstanding.  1994, c. 18, s. 2 (17).

Assessment

(10) The Minister may assess tax payable or any penalty under this section within four years from the date the tax becomes payable.  1998, c. 30, s. 26 (5).

Same

(10.1) Despite subsection (10), the Minister may assess tax payable or a penalty under this section at any time the Minister considers reasonable if the Minister establishes that, in making a return or in supplying or omitting to disclose information in respect of tax under the Act, the person has made a misrepresentation that is attributable to neglect, carelessness or wilful default or has committed a fraud.  1998, c. 30, s. 26 (5).

Exception, waiver of limitation

(10.2) Despite subsection (10), the Minister may assess or reassess a person at any time if the person has filed with the Minister a waiver in a form approved by the Minister before the expiry of the time provided in that subsection.  2004, c. 31, Sched. 15, s. 5.

Revocation of waiver

(10.3) If a person files a waiver under subsection (10.2), the person may file a notice of revocation of the waiver in a form approved by the Minister.  2004, c. 31, Sched. 15, s. 5.

Effect of revocation

(10.4) If a person files a notice of revocation of the waiver under subsection (10.3), the Minister shall not issue an assessment or reassessment under subsection (10) in reliance on the waiver more than one year after the date on which the notice of revocation is filed.  2004, c. 31, Sched. 15, s. 5.

Waiver, transitional

(10.5) Despite subsection (10), if, before December 16, 2004, a person provided the Minister with a written waiver of the time limit, the Minister may assess or reassess the person at any time in respect of the period to which the waiver applies, and subsections (10.3) and (10.4) apply with necessary modifications in respect of the waiver.  2005, c. 31, Sched. 7, s. 6.

Assessment conclusive

(11) Subject to being vacated or varied on an objection or appeal, a statement or assessment under this section shall be deemed to be valid and binding and the amount assessed in any such assessment shall, for the purposes of the collection or recovery thereof, be deemed to be tax owing under this Act and be conclusively established as a debt owing to Her Majesty the Queen in right of Ontario.  R.S.O. 1990, c. F.35, s. 13 (11).

Notice of assessment

(12) The Minister may, at any time the Minister considers reasonable, assess an interjurisdictional carrier, who has failed or refused to maintain adequate books of account for the purposes of subsection 12 (3), the tax payable under this Act by the interjurisdictional carrier and, for the purpose of ascertaining the amount of the tax to be assessed, the person’s interjurisdictional vehicles or fleet of interjurisdictional vehicles shall be deemed to have travelled a distance equal to 1.6 kilometres for each litre of fuel consumed by the vehicles or fleet of vehicles.  1991, c. 49, s. 15 (3).

Assessment, non-arm’s length transfers

13.1 (1) In this section,

“member of his or her family” means, in relation to a transferor, the parent, spouse, grandparent, child, grandchild, son-in-law, daughter-in-law, father-in-law or mother-in-law of the transferor; (“membre de sa famille”)

“spouse” means spouse as defined in section 29 of the Family Law Act. (“conjoint”)  2001, c. 23, s. 97; 2005, c. 5, s. 29 (1).

Liability to pay

(2) If at any time a person transfers property (including money), either directly or indirectly, by means of a trust or by any other means to a member of his or her family, to an individual who is less than 18 years old at the time of the transfer, or to another person with whom the transferor is not dealing at arm’s length, the transferor and transferee are jointly and severally liable to pay under this Act the amount determined under subsection (4).  2001, c. 23, s. 97; 2005, c. 5, s. 29 (2).

Same

(3) For the purpose of subsection (2), persons shall be deemed not to deal with each other at arm’s length if, by reason of subsections 251 (1) to (6) of the Income Tax Act (Canada), they are related to each other for the purposes of that Act.  2001, c. 23, s. 97.

Amount payable

(4) The amount referred to in subsection (2) is the lesser of “A” and “B” where,

  “A” is the amount, if any, by which the fair market value of the property transferred, at the time of the transfer, exceeds the fair market value, at the time of the transfer, of the consideration given by the transferee for the transfer; and

  “B” is the total of all amounts each of which is,

(a) any tax payable by the transferor under this Act at the time of the transfer or at any previous time but not paid,

(b) any tax collected, collectable or payable but not remitted or transmitted as required under this Act by the transferor for the reporting period during which the transfer took place or any previous reporting period,

(c) any penalty or interest for which the transferor is liable under this Act at the time of the transfer.  2001, c. 23, s. 97.

Same

(5) Nothing in subsection (2) or (4) limits the liability of the transferor or transferee under any other provision of this Act.  2001, c. 23, s. 97.

Assessment

(6) The Minister may assess a transferee at any time in respect of any amount payable by reason of this section and section 14 applies, with necessary modifications, to the assessment.  2001, c. 23, s. 97.

Effect of payment

(7) If a transferor and transferee are jointly and severally liable to pay an amount under this section,

(a) a payment by the transferee on account of the transferee’s liability discharges the joint liability, to the extent of the payment; and

(b) a payment by the transferor on account of the transferor’s liability under this Act discharges the transferee’s liability under this section to the extent that the payment reduces the balance of the transferor’s liability under this Act to an amount less than the amount of the transferee’s liability under this section.  2001, c. 23, s. 97.

Exception

(8) Subsection (2) does not apply with respect to a transfer of property (including money) between spouses,

(a) under a decree, order or judgment of a competent tribunal; or

(b) under a written separation agreement if, at the time of the transfer, the transferor and transferee were living separate and apart as a result of a breakdown of their relationship.  2001, c. 23, s. 97; 2005, c. 5, s. 29 (3).

Objections and appeals

Notice of objection

14. (1) A person who objects to an assessment or statement of disallowance under section 13, or to a penalty paid or assessed under this Act, may, within 180 days from the service of the notice of assessment or statement of disallowance, or the payment of the penalty under subsection 8 (11), serve on the Minister a notice of objection in the form approved by the Minister.  1998, c. 30, s. 27 (1).

Facts and reasons to be given

(1.1) The notice of objection shall,

(a) clearly describe each issue raised by way of objection; and

(b) fully set out the facts and reasons relied on by the person in respect of each issue.  1998, c. 30, s. 27 (1).

Same

(1.2) If a notice of objection does not fully set out the facts and reasons relied on by the person in respect of an issue, the Minister may, in writing, request the person to provide the information, and the person shall be deemed to have complied with clause (1.1) (b) in respect of the issue if the person provides the information to the Minister in writing within 60 days after the day the request is made by the Minister.  1998, c. 30, s. 27 (1).

Limitation

(1.3) A person shall not raise, by way of objection under this section to a fresh statement or reassessment or to a variation of an assessment or statement under subsection (4), any issue that the person is not entitled to raise by way of appeal under this section in respect of the fresh statement or reassessment or of a variation of the assessment or statement.  1998, c. 30, s. 27 (1).

Service of notice

(2) A notice of objection under this section shall be served by being sent by registered mail addressed to the Minister or by such other method as the Minister may prescribe.  R.S.O. 1990, c. F.35, s. 14 (2); 1998, c. 30, s. 27 (2).

(3) Repealed:  1998, c. 30, s. 27 (3).

Reconsideration

(4) Upon receipt of the notice of objection, the Minister shall with all due dispatch reconsider the assessment, statement of disallowance or penalty objected to and vacate, confirm or vary the assessment, statement of disallowance or penalty and reassess or serve a fresh statement of disallowance, and the Minister shall give the person who made the objection written notice of the action taken by the Minister.  1991, c. 49, s. 16 (2); 1998, c. 30, s. 27 (4).

Appeal

(5) When the Minister has given the notification required by subsection (4), the person who has served a notice of objection under this section may appeal to the Superior Court of Justice to have the assessment, statement of disallowance or penalty so objected to vacated or varied, but no appeal under this section shall be instituted after the expiration of ninety days from the day notice has been mailed to or served on such person under subsection (4).  R.S.O. 1990, c. F.35, s. 14 (5); 1991, c. 49, s. 16 (3); 2001, c. 23, s. 98 (1).

Computation of time

(5.1) For the purpose of calculating the number of days mentioned in subsection (1), (1.2) or (5), the day on which a notice of assessment or a statement referred to in subsection (1) is mailed, a request is made under subsection (1.2) or notice is given under subsection (4) is the date stated on the notice, statement or request.  1998, c. 30, s. 27 (5).

Appeal, how instituted

(6) An appeal to the Superior Court of Justice shall be instituted by,

(a) filing a notice of appeal with the court in the form approved by the Minister;

(b) paying a fee to the court in the same amount and manner as the fee payable under regulations made under the Administration of Justice Act on the issue of a statement of claim; and

(c) serving on the Minister a copy of the notice of appeal as filed.  1998, c. 30, s. 27 (6); 2001, c. 23, s. 98 (2).

Limitation

(6.1) A person is entitled to raise by way of appeal only those issues raised by the person in a notice of objection to the assessment, statement or penalty being appealed and in respect of which the person has complied or was deemed to have complied with subsection (1.1).  1998, c. 30, s. 27 (6).

Exception

(6.2) Despite subsection (6.1), a person may raise by way of appeal an issue forming the basis of a fresh statement or reassessment or of a variation of an assessment, statement or penalty under subsection (4) if the issue was not part of the assessment, statement or penalty with respect to which the person served the notice of objection.  1998, c. 30, s. 27 (6).

Application, subss. (6.1) and (6.2)

(6.3) Subsections (6.1) and (6.2) apply only in respect of appeals in respect of which the period of 90 days referred to in subsection (5) begins after December 31, 1998.  1998, c. 30, s. 27 (6).

Waived right of objection or appeal

(6.4) Despite subsection (5), no person shall institute an appeal under this section to have an assessment, statement or penalty vacated or varied in respect of an issue for which the right of objection or appeal has been waived in writing by or on behalf of the person.  1998, c. 30, s. 27 (6).

Service

(6.5) A notice of appeal shall be served on the Minister by being sent by registered mail addressed to the Minister, by personal service or by such other method of service as the Minister prescribes.  1998, c. 30, s. 27 (6).

(7) Repealed:  1998, c. 30, s. 27 (6).

Statement of allegations

(8) The appellant shall set out in the notice of appeal a statement of the allegations of fact and the statutory provisions and reasons that the appellant intends to submit in support of the appeal, and an address in Ontario where the appellant may be served.  R.S.O. 1990, c. F.35, s. 14 (8).

Reply to notice of appeal

(9) The Minister shall with all due dispatch serve on the appellant and file with the court a reply to the notice of appeal admitting or denying the facts alleged and containing a statement of such further allegations of fact and of such statutory provisions and reasons as the Minister intends to rely on, and, where the Minister fails to serve the reply within 180 days from the date of service of the notice under subsection (6), the appellant may, upon twenty-one days notice to the Minister, bring a motion for an order requiring the reply to be served within such time as a judge shall order, and the judge may, if he or she considers it proper in the circumstances, also order that, upon failure of the Minister to serve the reply in the time specified in the order, the assessment or statement of disallowance with respect to which the appeal is made shall be vacated and any tax pursuant to such assessment shall be repaid to the appellant or the refund disallowed be paid to the appellant, but nothing in this section revives an appeal that is void or affects a statement of disallowance or assessment that has become valid and binding.  R.S.O. 1990, c. F.35, s. 14 (9); 2001, c. 23, s. 98 (3).

Matter deemed action

(10) Upon the filing of the material referred to in subsections (5) and (9), with the local registrar of the Superior Court of Justice, the matter shall be deemed to be an action in the court and the practice and the procedure of the court, including the right of appeal and the practice and procedure relating to appeals, apply to every matter that is deemed an action under this subsection, and every judgment and order given or made in every such action may be enforced in the same manner and by the like process as a judgment or order given or made in an action commenced in the court.  R.S.O. 1990, c. F.35, s. 14 (10); 2001, c. 23, s. 98 (4).

Proceedings closed to the public

(11) Proceedings under subsections (5), (9), (10), (12) and (13) may be closed to the public on request made to the court by the appellant or by the Minister.  R.S.O. 1990, c. F.35, s. 14 (11).

Disposal of appeal

(12) The court may dispose of the appeal by such order as it considers just and the Minister shall, subject to the final decision of any court to which the order is appealed, vacate or vary, where necessary, the assessment or statement of disallowance so as to carry out the final order of the court.  R.S.O. 1990, c. F.35, s. 14 (12).

Court may order refund

(13) The court may, in delivering judgment disposing of an appeal, order payment of a refund of tax or penalty by the appellant or the Minister, as the case may be, and may make such order as to costs as it considers proper.  R.S.O. 1990, c. F.35, s. 14 (13); 1991, c. 49, s. 16 (4); 1994, c. 18, s. 2 (5).

Irregularities

(14) An assessment shall not be vacated or varied on adjudication by reason only of any irregularity, informality, omission or error on the part of any person in the observation of any directory provision of this Act.  R.S.O. 1990, c. F.35, s. 14 (14).

Extension of time

(15) The time within which a notice of objection is to be served or an appeal is to be instituted may be extended by the Minister if application for extension is made,

(a) in respect of a notice of objection under subsection (1),

(i) before the expiration of the time allowed under that subsection for service of notice of the objection, or

(ii) within one year from the day of mailing or delivery by personal service of the notice of assessment or statement of disallowance that is the subject of the objection where the person wishing to make objection furnishes to the Minister an explanation satisfactory to the Minister that explains why the notice of objection could not be served in accordance with subsection (1); or

(b) with respect to an appeal, before the expiry of the time allowed under subsection (5) for instituting the appeal.  R.S.O. 1990, c. F.35, s. 14 (15); 2006, c. 33, Sched. K, s. 4.

Application under subrule 14.05 (2), Rules of Civil Procedure

14.1 (1) If the following conditions are satisfied, a person may make an application under subrule 14.05 (2) of the Rules of Civil Procedure to a judge of the Superior Court of Justice:

1. The application is to determine one or more issues of law that depend solely on the interpretation of,

i. this Act or the regulations, or

ii. this Act or the regulations and another Ontario statute or regulation.

2. The Minister has indicated in writing that the Minister is satisfied that it is in the public interest for the applicant to make the application. 

3. The Minister and the applicant have executed a statement of agreed facts on which they both intend to rely and the applicant files the statement as part of the applicant’s application record.

4. No facts remain in dispute between the Minister and the applicant that either of them believes may be relevant to the determination of any issue of law that is a subject of the application.  2006, c. 33, Sched. K, s. 5.

Application of rule 38.10, Rules of Civil Procedure

(2) Rule 38.10 of the Rules of Civil Procedure does not apply to an application referred to in this section, except that the presiding judge may, on the hearing of the application, adjourn the application in whole or in part and with or without terms under clause 38.10 (1) (a).  2006, c. 33, Sched. K, s. 5.

Disposition of application

(3) The court may dispose of an application that is authorized under this section by,

(a) making a declaration of law in respect of one or more issues of law forming the subject of the application;

(b) declining to make a declaration of law in respect of any of the issues of law forming the subject of the application; or

(c) dismissing the application.  2006, c. 33, Sched. K, s. 5.

Effect of declaration of law

(4) No declaration of law made on an application under this section,

(a) shall be binding on the Minister and the applicant except in relation to the facts agreed to by them in the proceeding; or

(b) shall otherwise affect the rights of the Minister or the applicant in any appeal instituted under this Act.  2006, c. 33, Sched. K, s. 5.

No applications under subrule 14.05 (3)

(5) No person other than the Minister may bring an application under subrule 14.05 (3) of the Rules of Civil Procedure on or after the day this section comes into force, in respect of any matter arising under this Act.  2006, c. 33, Sched. K, s. 5.

Other proceedings

(6) On the motion of the Minister, the court shall dismiss a proceeding commenced by an application under rule 14.05 of the Rules of Civil Procedure relating to a matter under this Act or the regulations if any condition in subsection (1) has not been satisfied or the application is prohibited under subsection (5).  2006, c. 33, Sched. K, s. 5.

Application

(7) Subsections (1) to (6) do not apply in respect of applications to the Superior Court of Justice authorized under any other section of this Act.  2006, c. 33, Sched. K, s. 5.

Certificate to prove amount of tax

15. (1) The Deputy Minister of Finance shall determine the amount of the tax referred to in subsections 2 (8), 2 (9), 3.9 (1), 3.9 (2) and 4 (5), section 4.9, subsections 4.16 (1), 4.19 (2) and 11 (4) and section 27 from such information as is available to the Deputy Minister and shall issue a certificate as to the amount, and such a certificate that is signed or that purports to be signed by the Deputy Minister and that states the amount of tax that should have been collected or paid or that would be payable under section 2 is proof, in the absence of evidence to the contrary, of the amount of the tax and of the authority of the person who issued the certificate without proof of appointment or signature.  1991, c. 49, s. 17; 1994, c. 18, s. 2 (18).

Proof of compliance by Minister or officials

(2) For the purposes of any proceeding taken under this Act, an affidavit of the Minister or an official of the Ministry of Finance as to compliance with this Act or the failure of any person to comply with the requirements of this Act is proof, in the absence of evidence to the contrary, of the facts set out in the affidavit without proof of the signature of the person making the affidavit.

Notice

(2.1) Despite section 35 of the Evidence Act, an affidavit mentioned in subsection (2) may be introduced in evidence without notice.

Right to cross-examine

(2.2) A party against whom affidavit evidence under subsection (2) is adduced may, with leave of the court, require the attendance of the deponent for the purposes of cross-examination.  1994, c. 18, s. 2 (19).

Analysis of fuel

(3) The Minister may authorize any person he or she designates to analyze fuel under this Act and the Minister may approve the form of the certificate of analysis to be issued by that person.  R.S.O. 1990, c. F.35, s. 15 (3); 1997, c. 19, s. 7 (5).

Idem

(4) In any proceeding instituted under this Act, the certificate of analysis of fuel made under subsection (3) and signed by a person authorized by subsection (3) to make the analysis is proof, in the absence of evidence to the contrary, of the facts stated therein and of the authority of the person signing the certificate to make the analysis, without other proof of his or her appointment or signature.

When information to be laid

(5) Any information in respect of an offence against this Act shall be laid within six years of the time when the matter of the information arose.

Remedies to be independent

(6) Neither the application of any provision of this section or the enforcement of any penalty hereunder suspends or affects any remedy for the recovery of any tax payable under this Act.  R.S.O. 1990, c. F.35, s. 15 (4-6).

Offence

16. (1) Every person who makes a false statement in any return or information made or furnished to the Minister under this Act is guilty of an offence and is liable to a fine of not less than $500 and not more than $10,000 plus an amount of not more than double the amount of the tax that should have been shown to be payable or that was sought to be evaded, or to imprisonment for a term of not more than two years or to both fine and imprisonment.

Officers, etc., of corporations

(2) Any person who, being an officer, director or agent of a corporation, directed, authorized, assented to, acquiesced in or participated in the commission of any act that is an offence under this Act and for which the corporation would be liable for prosecution is guilty of an offence, and on conviction is liable to the punishment provided for the offence whether or not the corporation has been prosecuted or convicted.  R.S.O. 1990, c. F.35, s. 16.

Recovery of tax

17. (1) Upon default of transmission to the Minister by any person of any tax that is collected and any tax or penalty that is payable by such person under this Act,

(a) the Minister may bring an action for recovery thereof in any court of competent jurisdiction and every such action shall be brought and executed in and by the name of the Minister or his or her name of office and may be continued by his or her successor in office as if no change had occurred, and shall be tried without a jury; or

(b) the Minister may issue a warrant, directed to the sheriff for an area in which any property of the person is located or situate, to enforce payment of the following amounts and the warrant has the same force and effect as a writ of execution issued out of the Superior Court of Justice:

(i) any amount owing by the person under this Act,

(ii) interest on that amount from the date of the issue of the warrant, and

(iii) the costs, expenses and poundage of the sheriff.  R.S.O. 1990, c. F.35, s. 17 (1); 1998, c. 30, s. 28 (1); 2001, c. 23, s. 99 (1); 2011, c. 9, Sched. 16, s. 2 (1).

Application of subrule 60.07 (2), Rules of Civil Procedure

(1.1) Subrule 60.07 (2) of the Rules of Civil Procedure does not apply in respect of a warrant issued by the Minister under clause (1) (b).  2011, c. 9, Sched. 16, s. 2 (2).

Security for tax

(2) Where the Minister considers it advisable to do so, the Minister may accept security for the payment of taxes in any manner the Minister considers appropriate.  R.S.O. 1990, c. F.35, s. 17 (2).

Garnishment

(3) When the Minister has knowledge or suspects that a person (a “third party”) is, or within 365 days will become, indebted or liable to make any payment to a person (a “tax debtor”) liable to make a payment or remittance under this Act, the Minister may, by registered letter or by letter served personally, require the third party to promptly pay to the Minister any money that is otherwise payable by the third party to the tax debtor in whole or in part during the 365 days after the third party receives the letter.  2001, c. 23, s. 99 (2).

Garnishment, loans and advances

(3.0.1) If the Minister has knowledge or suspects that within 365 days,

(a) a bank, credit union, trust corporation or other similar person (in this section referred to as the “institution”) will loan or advance money to, or make a payment on behalf of, or make a payment in respect of a negotiable instrument issued by a person who is liable to make a payment or remittance under this Act, who is indebted to the institution and who has granted security in respect of the indebtedness; or

(b) a person other than an institution will loan or advance money to or make a payment on behalf of a person who is liable to make a payment or remittance under this Act and who the Minister knows or suspects,

(i) is employed by or engaged in providing services or property to that person or who was or will within 365 days be so employed or engaged, or

(ii) is not dealing at arm’s length with that person,

the Minister may, by registered letter, or by letter served personally, require the institution or person, as the case may be, to pay forthwith to the Minister on account of the liability of the person liable to make a payment or remittance under this Act all or part of the money that would otherwise have been loaned, advanced or paid, and any money paid to the Minister shall be deemed to have been loaned, advanced or paid, as the case may be, to the person liable to make a payment or remittance under this Act.  2012, c. 8, Sched. 17, s. 2.

Same

(3.1) Despite any provision of this or any other Act, when the Minister has knowledge or suspects that a person is, or within 365 days will become, indebted or liable to make any payment to,

(a) a person whose property is subject to the deemed trust created by subsection 3.6.1 (1); or

(b) a secured creditor who has a right to receive the payment that, but for a security interest in favour of the secured creditor, would be payable to the person referred to in clause (a),

the Minister may by ordinary mail or by demand served personally, require the first-named person to pay forthwith to the Minister on account of the liability of the person referred to in clause (a) all or part of the money that would otherwise be paid, and any such payment shall become the property of Her Majesty in right of Ontario despite any security interest in it and shall be paid to the Minister in priority to any such security interest.  1998, c. 30, s. 28 (3); 2001, c. 23, s. 99 (3).

Same

(3.2) Subsection (3.1) applies to amounts that become subject to a deemed trust under subsection 3.6.1 (1) on or after January 1, 1999, whether or not the security interest was acquired before that date.  1998, c. 30, s. 28 (3).

Idem

(4) The receipt of the Minister for money paid as required under this section is a good and sufficient discharge of the original liability to the extent of the payment.  R.S.O. 1990, c. F.35, s. 17 (4); 1998, c. 30, s. 28 (4).

Liability of debtor

(5) Every person who has discharged any liability to a person liable to make a payment or remittance under this Act without complying with the requirements under this section is liable to pay to the Minister an amount equal to the liability discharged or the amount the person was required under this section to pay to the Minister, whichever is the lesser.  R.S.O. 1990, c. F.35, s. 17 (5); 1998, c. 30, s. 28 (5).

Same

(5.1) Every institution or person who fails to comply with a requirement under subsection (3.0.1) with respect to money to be loaned, advanced or paid is liable to pay the Crown in right of Ontario an amount equal to the lesser of,

(a) the aggregate of money so loaned, advanced or paid; or

(b) the amount that the institution or person was required under subsection (3.0.1) to pay to the Minister.  2012, c. 8, Sched. 17, s. 2.

Service of garnishee

(6) If a person (a “third party”) who is, or within 365 days will become, indebted or liable to make a payment to a person liable to make a payment or remittance under this Act carries on business under a name or style other than the third party’s own name, the letter under this section from the Minister to the third party may be addressed using the name or style under which the third party carries on business and, in the case of personal service, the letter shall be deemed to have been validly served if it is left with an adult employed at the place of business of the addressee.  2001, c. 23, s. 99 (4).

Same

(7) If persons (“partners”) who are, or within 365 days will become, indebted or liable to make a payment to a person liable to make a payment or remittance under this Act carry on business in partnership, the letter under this section from the Minister to the partners may be addressed to the partnership name and, in the case of personal service, the letter shall be deemed to have been validly served if it is served on a partner or left with an adult employed at the place of business of the partnership.  2001, c. 23, s. 99 (4).

Garnishment of wages

(8) Subject to the Wages Act, where the Minister has under this section required an employer to pay to the Minister on account of an employee’s liability under this Act money otherwise payable by the employer to the employee as remuneration, the requirement is applicable to all future payments by the employer to the employee in respect of remuneration until the liability under this Act is satisfied and operates to require payments to the Minister out of each payment of remuneration of such amount as may be stipulated by the Minister in the registered letter or letter served personally.  R.S.O. 1990, c. F.35, s. 17 (8); 1998, c. 30, s. 28 (6).

Failure to remit

(9) Where any person without reasonable excuse fails to remit to the Minister the money as required under this section, the Minister may apply to the Superior Court of Justice for an order directing such person to remit the money which the person has failed to remit.  R.S.O. 1990, c. F.35, s. 17 (9); 1998, c. 30, s. 28 (7); 2001, c. 23, s. 99 (5).

Recovery of costs

17.0.1 The Minister is entitled to recover from a person the reasonable costs and charges incurred by or on behalf of the Minister in the course of obtaining payment of any amount required to be paid under this Act by the person, if the costs and charges relate to any of the following things:

1. Service of a notice or other document.

2. Registration of a notice of lien and charge, including any charges for related searches and for enforcement activities.

3. An action under clause 17 (1) (a) for the recovery of any amount payable under this Act.

4. Issuance and execution of a warrant referred to in clause 17 (1) (b), to the extent that the costs and charges are not recovered by the sheriff upon execution of the warrant.

5. Other prescribed payments made by or on behalf of the Minister to a third party.  2011, c. 9, Sched. 16, s. 3.

Lien on real property

17.1 (1) Any tax payable or required to be remitted under this Act by any taxpayer is, upon registration by the Minister in the proper land registry office of a notice claiming a lien and charge conferred by this section, a lien and charge on any interest the taxpayer liable to pay or remit the tax has in the real property described in the notice.  1994, c. 18, s. 2 (20).

Lien on personal property

(2) Any tax payable or required to be remitted under this Act by any taxpayer is, upon registration by the Minister with the registrar under the Personal Property Security Act of a notice claiming a lien and charge under this section, a lien and charge on any interest in personal property in Ontario owned or held at the time of registration or acquired afterwards by the taxpayer liable to pay or remit the tax.  1994, c. 18, s. 2 (20).

Amounts included and priority

(3) The lien and charge conferred by subsection (1) or (2) is in respect of all amounts for which the taxpayer is liable under this Act at the time of registration of the notice or any renewal of it and all amounts for which the taxpayer afterwards becomes liable while the notice remains registered and, upon registration of a notice of lien and charge, the lien and charge has priority over,

(a) any perfected security interest registered after the notice is registered;

(b) any security interest perfected by possession after the notice is registered; and

(c) any encumbrance or other claim that is registered against or that otherwise arises and affects the taxpayer’s property after the notice is registered.  1994, c. 18, s. 2 (20).

Exception

(4) For the purposes of subsection (3), a notice of lien and charge under subsection (2) does not have priority over a perfected purchase money security interest in collateral or its proceeds and shall be deemed to be a security interest perfected by registration for the purpose of the priority rules under section 28 of the Personal Property Security Act.  1994, c. 18, s. 2 (20).

Lien effective

(5) A notice of lien and charge under subsection (2) is effective from the time assigned to its registration by the registrar or branch registrar and expires on the fifth anniversary of its registration unless a renewal notice of lien and charge is registered under this section before the end of the five-year period, in which case the lien and charge remains in effect for a further five-year period from the date the renewal notice is registered.  1994, c. 18, s. 2 (20); 2001, c. 23, s. 100 (1).

Same

(6) If taxes remain outstanding and unpaid at the end of the period, or its renewal, referred to in subsection (5), the Minister may register a renewal notice of lien and charge; the lien and charge remains in effect for a five-year period from the date the renewal notice is registered until the amount is fully paid, and shall be deemed to be continuously registered since the initial notice of lien and charge was registered under subsection (2).  2001, c. 23, s. 100 (2).

Where taxpayer not registered owner

(7) Where a taxpayer has an interest in real property but is not shown as its registered owner in the proper land registry office,

(a) the notice to be registered under subsection (1) shall recite the interest of the taxpayer in the real property; and

(b) a copy of the notice shall be sent to the registered owner at the owner’s address to which the latest notice of assessment under the Assessment Act has been sent.  1994, c. 18, s. 2 (20).

Secured party

(8) In addition to any other rights and remedies, if taxes or other amounts owed by a taxpayer remain outstanding and unpaid, the Minister has, in respect of a lien and charge under subsection (2),

(a) all the rights, remedies and duties of a secured party under sections 17, 59, 61, 62, 63 and 64, subsections 65 (4), (5), (6) and (7) and section 66 of the Personal Property Security Act;

(b) a security interest in the collateral for the purpose of clause 63 (4) (c) of that Act; and

(c) a security interest in the personal property for the purposes of sections 15 and 16 of the Repair and Storage Liens Act, if it is an article as defined in that Act.  1994, c. 18, s. 2 (20).

Registration of documents

(9) A notice of lien and charge under subsection (2) or any renewal of it shall be in the form of a financing statement or a financing change statement as prescribed under the Personal Property Security Act and may be tendered for registration at a branch office established under Part IV of that Act, or by mail addressed to an address prescribed under that Act.  1994, c. 18, s. 2 (20).

Errors in documents

(10) A notice of lien and charge or any renewal thereof is not invalidated nor is its effect impaired by reason only of an error or omission in the notice or in its execution or registration, unless a reasonable person is likely to be materially misled by the error or omission.  1994, c. 18, s. 2 (20).

Bankruptcy and Insolvency Act (Canada) unaffected

(11) Subject to Crown rights provided under section 87 of the Bankruptcy and Insolvency Act (Canada), nothing in this section affects or purports to affect the rights and obligations of any person under that Act.  1994, c. 18, s. 2 (20).

Effect of deemed trust

(11.1) The registration of a notice of lien and charge under this section does not affect the operation of section 3.6.1 and applies to secure any liability of a taxpayer in addition to any deemed trust under that section.  1998, c. 30, s. 29.

Definitions

(12) In this section,

“real property” includes fixtures and any interest of a taxpayer as lessee of real property; (“bien immeuble”)

“taxpayer” means any person assessed under this Act for tax, interest or penalties. (“contribuable”)  1994, c. 18, s. 2 (20).

Audit and inspection

18. (1) Any person thereunto authorized by the Minister for any purpose related to the administration or enforcement of this Act or the regulations may at all reasonable times enter and examine any motor vehicle powered by fuel or enter into any premises where any business is carried on or any property is kept or anything is done in connection with any business or where any books or records are or should be kept under this Act or the regulations, and may,

(a) audit or examine any books or records and any documents that relate or may relate to the tax imposed by this Act;

(b) examine any fuel or motor vehicle or the property described by an inventory or any property, process or matter, an examination of which may, in the person’s opinion, assist in determining the accuracy of any inventory or in ascertaining the information that is or should be in the books or records or the amount of any tax payable under this Act or that should be remitted or collected under this Act or the regulations;

(c) require a purchaser, retail dealer, wholesaler, importer, collector, distributor, exporter or interjurisdictional carrier or an operator of a motor vehicle liable to collect or pay or considered possibly liable to collect or pay tax under this Act or, if such person is a partnership or corporation, require a partner or the president, manager, secretary or any director, agent or representative thereof or any other person on the premises of such person or in the motor vehicle of such operator to give the person making an audit or examination all reasonable assistance with the audit or examination and to answer all questions relating to the audit or examination either orally or, if he or she so requires, in writing, on oath or by statutory declaration, and for that purpose require such person to attend at the premises with him or her;

(d) Repealed:  1991, c. 49, s. 18 (2).

(e) take samples of any fuel to ascertain whether any fuel tank or storage tank contains coloured fuel or clear fuel for the purpose of determining the amount of any tax payable under this Act or, in the case of a storage tank purported by the custodian of the fuel to contain coloured fuel, to ascertain if the fuel contains dye in the proportion established by the Minister for colouring fuel; and

(f) detain any motor vehicle suspected, after an examination of the fuel in the fuel tank of the motor vehicle, of containing fuel other than clear fuel contrary to this Act and the regulations and to question the person in charge of the motor vehicle and examine invoices and any other documents in that person’s possession.  R.S.O. 1990, c. F.35, s. 18 (1); 1991, c. 49, s. 18 (1, 2); 1998, c. 30, s. 30 (1, 2); 2001, c. 23, s. 101 (1); 2002, c. 22, s. 82 (1).

Idem

(2) The Minister may, for any purpose related to the administration or enforcement of this Act or the regulations, by registered letter or by a demand served personally, require from any purchaser, retail dealer, wholesaler, importer, manufacturer, collector, distributor, registered consumer, exporter, interjurisdictional transporter or interjurisdictional carrier or from the owner or operator of a motor vehicle, or, if any of them is a partnership or a corporation, from a partner or the president, manager, secretary or any director, agent or representative thereof,

(a) any information or a return as required under this Act or the regulations; or

(b) production or production on oath of any books, letters, accounts, invoices, statements, financial or otherwise, or other documents,

within such reasonable time as is stipulated therein.  R.S.O. 1990, c. F.35, s. 18 (2); 1991, c. 49, s. 18 (3); 1998, c. 30, s. 30 (3); 2001, c. 23, s. 101 (2); 2002, c. 22, s. 82 (2).

Production of evidence to prove tax payable by another person

(3) The Minister may, by registered letter or by a demand that is served personally, require the production, under oath or otherwise, by any person, partnership or trust, or by his, her or its agent or officer, of any letters, accounts, invoices, statements, financial or otherwise, books or other documents in the possession or in the control of such person, syndicate or trust, or of his, her or its agent or officer for the purpose of determining what tax, if any, is collectable, payable or collected under this Act by any person and production thereof shall be made within such reasonable time as is stipulated in such registered letter or demand.  R.S.O. 1990, c. F.35, s. 18 (3).

Deemed receipt of registered letter

(3.1) A registered letter sent to a person or entity under subsection (2) or (3) is deemed to have been received on the fifth day after the day of mailing unless the person or entity establishes that, although acting in good faith, the person or entity did not receive it or did not receive it until a later date.  2011, c. 9, Sched. 16, s. 4.

Copies

(4) If a book, record or other document is examined or produced under this section, the person by whom it is examined or to whom it is produced, or any officer of the Ministry of Finance, may make or cause to be made one or more copies of it, and a document purporting to be signed by the Minister, or by a person authorized by the Minister, certifying the document to be a copy made under this subsection is admissible in evidence and has the same probative force as the original document would have had if it had been proved in the ordinary way.  2006, c. 33, Sched. K, s. 6.

Admission of evidence

(4.1) The Minister, or a person authorized by the Minister, may, for any purpose relating to the administration or enforcement of this Act, reproduce from original data stored electronically any document previously issued by the Minister under this Act, and the electronically reproduced document is admissible in evidence and shall have the same probative force as the original document would have had if it had been proved in the ordinary way.  1994, c. 18, s. 2 (21).

Same

(4.2) If a return, document or any other information has been delivered by a person to the Minister on computer disk or other electronic medium, or by electronic filing as permitted under this Act, a document, accompanied by the certificate of the Minister, or of a person authorized by the Minister, stating that the document is a print-out of the return, document or information received by the Minister from the person and certifying that the information contained in the document is a true and accurate representation of the return, document or information delivered by the person, is admissible in evidence and shall have the same probative force as the original return, document or information would have had if it had been delivered in paper form.  1994, c. 18, s. 2 (21).

Same

(4.3) If the data contained on a return or other document received by the Minister from a person is stored electronically by the Minister on computer disk or other electronic medium and the return or other document has been destroyed by a person so authorized by the Minister, a document, accompanied by the certificate of the Minister, stating that the document is a print-out of the data contained on the return and other document received and stored electronically by the Minister and certifying that the information contained in the document is a true and accurate representation of the data contained on the return or document delivered by the person, is admissible in evidence and shall have the same probative force as the original return or document would have had if it had been proved in the ordinary way.  1994, c. 18, s. 2 (21).

Interference

(5) No person shall hinder or interfere with any person doing anything that the person is authorized by this section to do, or prevent or attempt to prevent any person doing any such thing.  R.S.O. 1990, c. F.35, s. 18 (5).

Compliance

(6) Despite any other law to the contrary, every person shall, unless the person is unable to do so, do everything that the person is required by this section to do.  R.S.O. 1990, c. F.35, s. 18 (6).

Offence

(7) Every person who contravenes this section or who fails to provide any information or make any return requested under this section is guilty of an offence and on conviction is liable to a fine of $50 for each day during which the offence continues.  R.S.O. 1990, c. F.35, s. 18 (7).

Liability for damage to screens and filters

(8) The Crown or any servant thereof or any person acting in the administration or enforcement of this Act is not liable for any damage to a screen, filter or other device installed in, on or about the intake of a fuel tank or a storage tank and which impedes access to the tank by equipment required by and used by a person authorized by the Minister under this Act and the regulations to take samples of fuel where such screen, filter or other device is not removed or not removable by the person in charge of the tank or motor vehicle at the time a sample of fuel is to be taken or for any compensation to any person for any fuel taken as a sample for the purpose of this Act or the regulations.  R.S.O. 1990, c. F.35, s. 18 (8).

Fuel in bulk

19. (1) Every person carrying fuel in bulk, and the operator of every motor vehicle carrying fuel in bulk, shall, when requested by the Minister or any person authorized by the Minister, give written evidence to the requester of any or all of the following information,

(a) the name and address of any person from whom the fuel was obtained and the name and address of any person to whom the fuel so obtained was delivered or is to be delivered;

(b) the quantity of fuel delivered or to be delivered to any person;

(c) the use or intended use, if known, to be made of any fuel delivered or to be delivered from such motor vehicle.

Detention

(2) The Minister or a person authorized by the Minister may detain a motor vehicle carrying fuel in bulk where,

(a) written evidence requested under subsection (1) is not given;

(b) the information in the written evidence that is given is false; or

(c) the importer fails to comply with subsection 11 (7) or fails to deliver any return in accordance with subsection 11 (9).

Time

(3) The Minister or a person authorized by the Minister may detain a motor vehicle under subsection (2) until the written evidence is given, the true information is given, the remittance required by subsection 11 (7) is delivered or the return in accordance with subsection 11 (9) is delivered, as the case requires.

Liability

(4) During any detention under subsection (2), the Crown, or any person acting in the administration and enforcement of this Act, is not liable for any damage to the motor vehicle, its contents, cargo or freight, or to its owner or driver or otherwise that may occur or be alleged to occur by reason of the detention of the motor vehicle pending compliance with subsection (1) and subsections 11 (7) and (9).  R.S.O. 1990, c. F.35, s. 19 (1-4).

Idem

(5) Any person authorized by the Minister may,

(a) stop and detain any motor vehicle capable of transporting fuel and any container capable of holding fuel as cargo;

(b) examine and take samples of the fuel being transported by any motor vehicle or in the fuel tank of the motor vehicle;

(c) examine documents in the custody of the person in charge of the motor vehicle related to liability for tax on the purchase of fuel, the ownership of the motor vehicle and the identity of the person in charge of the motor vehicle;

(d) prohibit the sale or delivery as coloured fuel of any fuel carried, if the fuel contains less dye in proportion to fuel than is established by the Minister for colouring fuel.  R.S.O. 1990, c. F.35, s. 19 (5); 1998, c. 30, s. 31.

Offence

(6) Every person who,

(a) neglects or omits to comply with stop signs set up by a person authorized to examine any motor vehicle or to obey the signals or orders of such person;

(b) refuses to permit the examination of any motor vehicle; or

(c) refuses or wilfully neglects to answer any question put to him or her by a person authorized to examine any motor vehicle,

is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $1,000.  R.S.O. 1990, c. F.35, s. 19 (6).

Relief from interest

20. Where, owing to special circumstances, it is considered inequitable that the whole amount of interest payable under this Act be paid, the Minister may exempt a person from payment of the whole or any part of the interest.  R.S.O. 1990, c. F.35, s. 20.

Refund

21. (1) For the purposes of subsection (2), the calculation of the amount of tax to be refunded may include the fuel consumption rating for the auxiliary equipment as determined or approved by the Minister.  2005, c. 31, Sched. 7, s. 7 (1).

Refund

(2) The Minister may refund the tax paid on clear fuel used to operate auxiliary equipment of a motor vehicle to which a number plate is attached as required under the Highway Traffic Act,

(a) if the use of the auxiliary equipment occurs in Ontario;

(b) if the auxiliary equipment is powered using fuel from the same fuel tank that is used to power the propulsion of the motor vehicle;

(c) if the power from the auxiliary equipment is not used to propel the motor vehicle;

(d)   if the motor vehicle is not principally used by its owner or operator to transport passengers, whether or not for hire, or for pleasure or recreation; and

(e) if the auxiliary equipment is not used for personal use, pleasure or recreation.  2001, c. 23, s. 102 (2); 2005, c. 31, Sched. 7, s. 7 (2).

(2.1) Repealed:  2001, c. 23, s. 102 (3).

Application for refund

(3) A refund under this Act shall not be made unless an application therefor, accompanied by properly receipted invoices, is received by the Minister within four years of the date when the tax, a refund of which is sought, was paid and it is established to the satisfaction of the Minister that the applicant is entitled to the refund claimed.  1991, c. 49, s. 19 (2); 1998, c. 30, s. 32 (1).

Idem

(4) Every invoice submitted with an application for a refund under this Act shall clearly indicate, in addition to the information required to be shown on an invoice under subsection 6 (1) or (2), the date of payment of the tax, and no refund shall be paid where the applicant has misrepresented a material fact in respect of any invoice.  1991, c. 49, s. 19 (2).

Exception

(4.1) Despite subsection (3), invoices are not required to accompany an application for a refund for a particular calendar year if the total of all refunds sought by the applicant for the calendar year is not more than $500.  2001, c. 23, s. 102 (4).

Same

(4.2) The applicant for a refund is required to keep the invoices referred to in subsection (4.1) for seven years after the date of the application and is required to give the invoices to the Minister upon request.  2001, c. 23, s. 102 (4).

Penalty

(5) If an applicant for a refund under this Act has misrepresented a material fact on or in connection with an application for a refund, in a return where an amount was retained by the applicant under subsection 11 (3) or in an invoice supporting the application or return, the Minister may, in addition to denying all or any part of the refund claimed through the use of the application or return, impose a penalty of not more than an amount equal to the refund denied.  1991, c. 49, s. 19 (2).

Offence

(5.1) Every person who, by deceit, falsehood or any other fraudulent means, obtains or attempts to obtain a refund under this Act or the regulations to which the person is not entitled is guilty of an offence and on conviction is liable to a fine of not less than $500 and not more than $10,000, to which may be added a fine of not more than double the amount of the refund the person obtained or sought to obtain, or to imprisonment for a term of not more than two years, or to both.  2006, c. 33, Sched. K, s. 7.

Refund

(6) If a person has transmitted to the Minister an amount in excess of the tax collectable or payable by the person under this Act, the excess shall be refunded to the person upon application therefor made within four years of the date of payment of the excess amount and, subject to subsection 13 (11) and subsection (7), if, as the result of an assessment or reassessment or the final decision of a court in proceedings commenced under section 14, it is established that the person assessed or reassessed or the appellant, as the case may be, has overpaid tax, the amount of the overpayment shall be refunded to the person.  1991, c. 49, s. 19 (2); 1998, c. 30, s. 32 (2).

Deemed tax

(7) Any amount refunded under this Act in excess of the amount to which the person receiving the refund was entitled shall be deemed to be tax under this Act owing to Her Majesty in right of Ontario, and the proceedings under this Act relating to collection of tax apply with necessary modifications to the amount.  1991, c. 49, s. 19 (2).

Application to other liabilities

(8) Instead of making a refund under this Act or the regulations, if any person is liable or is about to become liable to make a payment under this Act or under any other Act administered by the Minister that imposes a tax or is prescribed by the regulations, the Minister may apply the amount of the overpayment to the liability and, in that case, the Minister shall notify the person that the action has been taken.  1994, c. 18, s. 2 (24).

Note:  Subsection 21 (8) applies to applications for refunds made after June 23, 1994, whether the right to the refund arose before or after June 23, 1994.  See:  1994, c. 18, s. 2 (31).

Adjustments for temperature

Application by eligible retailer

21.1 (1) An eligible retailer who purchases fuel measured by the adjusted temperature method and sells it measured by the unadjusted temperature method may apply to the Minister to receive an amount calculated in the manner directed by the Minister in respect of the amount the retailer paid to the collector or wholesaler (from whom the fuel is purchased) on account of tax in respect of the fuel.

Application by eligible wholesaler

(2) An eligible wholesaler who is not designated a collector and who purchases fuel measured by the adjusted temperature method and sells it measured by the unadjusted temperature method may apply to the Minister to receive an amount calculated in the manner directed by the Minister in respect of the amount the wholesaler paid to the collector (from whom the fuel is purchased) on account of tax in respect of the fuel.

Same

(3) The application shall be made on the form and in the manner approved by the Minister and shall be given to the collector or wholesaler from whom the person purchases the fuel.

Evidence of entitlement

(4) Upon the Minister’s request, the applicant shall give the Minister evidence satisfactory to the Minister to prove that the person is entitled under this section to the amount for which the application is made.

Payment on behalf of Minister

(5) The collector or wholesaler may make the payment to the applicant on behalf of the Minister at the time of purchase of the fuel and shall do so in a manner approved by the Minister.

Termination of authority to make payments

(6) The Minister may, by a notice in writing, require a collector or wholesaler to cease making payments under this section or to cease making payments under this section to persons named in the notice, and the collector or wholesaler shall comply with the notice in accordance with its terms.

Collector may reduce amounts transmitted

(7) A collector may reduce the amounts required to be transmitted to the Minister under subsection 11 (1) by the amount of the payments made by the collector on behalf of the Minister under this section, until the collector receives notice from the Minister that the Minister has determined that all or part of an amount paid under this section is disallowed as an amount that was not properly payable under this section.

Collection of amounts paid

(8) If the Minister notifies a collector that an amount paid by the collector on behalf of the Minister under this section is disallowed by the Minister, the amount shall be deemed to be tax payable under this Act that the collector is required to remit to the Minister at the time indicated in the notice.

Wholesaler may apply for reimbursement

(9) If a wholesaler who is not designated a collector has paid an amount under this section to an eligible retailer or eligible wholesaler, the wholesaler may apply to the Minister in the manner directed by the Minister to be reimbursed for the amount paid.

Application under subs. 21 (6)

(10) Despite subsection (1) or (2), the Minister may require an eligible retailer or an eligible wholesaler to apply under subsection 21 (6) to receive amounts otherwise payable under this section; if the Minister does so, no application may be made under this section in respect of those amounts.

Same

(11) For the purposes of an application under subsection 21 (6) that is required by the Minister under this section, amounts otherwise payable under this section shall be deemed to be an excess amount.

Definitions

(12) In this section,

“eligible retailer” means a retail dealer who is an eligible retailer under the prescribed rules; (“détaillant admissible”)

“eligible wholesaler” means a wholesaler who is an eligible wholesaler under the prescribed rules. (“grossiste admissible”)  1998, c. 30, s. 33.

Communication of information

22. (1) Except as authorized by this section, no person employed by the Government of Ontario shall,

(a) knowingly communicate or knowingly allow to be communicated to any person any information obtained by or on behalf of the Minister for the purpose of this Act; or

(b) knowingly allow any person to inspect or have access to any record or thing obtained by or on behalf of the Minister for the purposes of this Act.

Officials not compellable as witnesses

(2) Despite any other Act, but subject to subsection (3), no person employed by the Government of Ontario shall be required, in connection with any legal proceedings,

(a) to give evidence relating to any information obtained by or on behalf of the Minister for the purposes of this Act; or

(b) to produce any record or thing obtained by or on behalf of the Minister for the purposes of this Act.

Exceptions for legal proceedings

(3) Subsections (1) and (2) do not apply in respect of,

(a) criminal proceedings under any Act of the Parliament of Canada; or

(b) proceedings in respect of the trial of any person for an offence under an Act of the Legislature; or

(c) proceedings relating to the administration or enforcement of this Act or the collection or assessment of tax under this Act.  R.S.O. 1990, c. F.35, s. 22 (1-3).

Communication

(4) A person employed by the Government of Ontario may, in the course of duties in connection with the administration or enforcement of this Act,

(a) communicate or allow to be communicated to another person employed by the Government of Ontario in the administration or enforcement of any law, information obtained by or on behalf of the Minister for the purposes of this Act; and

(b) allow another person employed by the Government of Ontario in the administration or enforcement of any law, to inspect or have access to any record or thing obtained by or on behalf of the Minister for the purposes of this Act.

Reciprocal communication

(4.1) A person who receives information or obtains access to any record or thing under subsection (4) has a duty to communicate or furnish to the Minister on a reciprocal basis any information, record or thing obtained by the person that affects the administration or enforcement of this Act.

Use of information

(4.2) Any information, record or thing communicated or furnished under this section may be used only for the administration or enforcement of this Act or an Act that is administered or enforced by the person receiving the information, record or thing.  1991, c. 49, s. 20 (1).

Exception for objection or appeal

(5) Despite anything in this Act, the Minister may permit a copy of any record or thing obtained by him or her or on his or her behalf for the purposes of this Act to be given to,

(a) the person from whom the record or thing was obtained; or

(b) any person,

(i) for the purpose of any objection or appeal that has been or may be taken by that person under this Act arising out of an assessment of tax under this Act in connection with which the record or thing was obtained, or

(ii) by whom any amount payable under this Act is payable or has been paid; or

(c) the legal representative of any person mentioned in clause (a) or (b) or the agent of any such person authorized in writing in that behalf.  R.S.O. 1990, c. F.35, s. 22 (5).

Information

(6) The Minister may permit information or a copy of any record or thing obtained by or on behalf of the Minister for the purposes of this Act to be given to any person employed by any government if,

(a) information, records or things obtained by that government for the purpose of any Act that imposes a tax or duty are communicated or furnished on a reciprocal basis to the Minister; and

(b) the information, record or thing will not be used for any purpose other than the administration or enforcement of a law that provides for the imposition of a tax or duty.  1991, c. 49, s. 20 (2).

(7) Repealed:  1994, c. 18, s. 2 (25).

Offence

(8) Every person who contravenes any provision of this section is guilty of an offence and on conviction is liable to a fine of not more than $2,000.  R.S.O. 1990, c. F.35, s. 22 (8).

Disclosure of names and addresses

22.1 (1) The Minister shall disclose the name and address of the following persons for purposes related to the administration of this Act and may impose conditions and restrictions with respect to the disclosure:

1. Each manufacturer who holds a registration certificate under subsection 2.1 (1).

2. Each collector who is designated under subsection 3 (1).

3. Each distributor who is designated under subsection 3.0.1 (1).

4. Each person who is registered under this Act as an importer.

5. Each person who is registered under this Act as an exporter.

6. Each person who is registered under this Act as a dyer.

7. Each person who is registered under this Act as an interjurisdictional transporter.

8. Each person who is a registered consumer under this Act.  2004, c. 31, Sched. 15, s. 6; 2008, c. 19, Sched. H, s. 4.

Exception

(2) Despite subsection (1), the Minister shall not disclose a person’s name or address if, in the Minister’s opinion, the disclosure is not necessary for the purposes of this Act.  2004, c. 31, Sched. 15, s. 6.

Interjurisdictional settlement of competing tax claims

23. (1) For the purpose of simplifying compliance with this Act and the administration and collection of the tax imposed by this Act, and in order to provide for reciprocal arrangements to settle competing claims for tax on the acquisition and use of fuel by persons carrying on business in more than one jurisdiction, the Minister may enter into an agreement, on such terms and conditions as are considered necessary and expedient, with another jurisdiction providing that tax paid to one jurisdiction on the acquisition there of fuel that is transferred to the other jurisdiction and that becomes liable to tax in the other jurisdiction under this Act or any similar legislation in force in the other jurisdiction may be paid by one jurisdiction to the other in reduction of the liability to the tax arising in the jurisdiction receiving the payment and in lieu of refunding the tax to the person who paid it and who became liable for the similar tax in the other jurisdiction.  2004, c. 31, Sched. 15, s. 7.

Payment for services

(2) An agreement entered into under subsection (1) may authorize payments to the other jurisdiction for services provided under the agreement and may authorize the other jurisdiction to deduct the amount of the payments from amounts payable to the Minister under the agreement.  2004, c. 31, Sched. 15, s. 7.

Remedies for recovery of tax and penalties

24. The use of a remedy does not bar or affect any other remedy, and the remedies provided by this Act for the recovery and enforcement of payment or collection, or both, of any tax or penalty, or both, imposed by this Act are in addition to other remedies existing by law, and no action or other proceeding in any way prejudices, limits or affects any lien, charge or priority existing under this Act or otherwise.  R.S.O. 1990, c. F.35, s. 24.

Offence, false statements

25. (1) Every person is guilty of an offence who,

(a) makes, participates in, assents to, or acquiesces in the making of false or deceptive statements in a return, certificate, statement or answer, delivered or made as required by or under this Act or the regulations;

(b) to evade payment of tax imposed by this Act, destroys, alters, mutilates, hides or otherwise disposes of the records or books of account of a purchaser, importer, exporter, collector, distributor, registered consumer, interjurisdictional carrier or transporter;

(c) makes, assents to or acquiesces in the making of false or deceptive entries or omits, assents to or acquiesces in the omission, to enter a material particular in records or books of a person referred to in clause (b);

(d) wilfully, in any manner, evades or attempts to evade compliance with this Act or payment of taxes imposed by this Act; or

(e) conspires with another person to commit an offence described in clause (a), (b), (c) or (d).  1991, c. 49, s. 21; 1998, c. 30, s. 34.

Penalty

(2) Every person who is guilty of an offence under subsection (1) is liable on conviction to a fine of not less than an amount equal to the amount of the tax that should have been declared to be collectable or payable or that is sought to be evaded and not more than triple the amount of the tax, or to imprisonment for a term of not more than two years, or to both.  1991, c. 49, s. 21.

Directors

25.1 (1) If a corporation has failed to collect tax under this Act, has collected tax and failed to remit the tax or has failed to pay any interest or penalty related thereto, the directors of the corporation at the time the corporation is required to collect or remit the taxes or to pay the interest or penalty related thereto, are jointly and severally liable, together with the corporation, to pay such amounts.  1991, c. 49, s. 22.

Exception

(2) A director of a corporation is not liable under subsection (1) unless,

(a) a warrant of execution for the amount of the corporation’s liability as described in subsection (1) has been issued under clause 17 (1) (b) and the warrant has been returned by the sheriff unsatisfied in whole or in part;

(a.1) the corporation has commenced proceedings under the Companies’ Creditors Arrangement Act (Canada);

(a.2) the corporation has become bankrupt due to an assignment or receiving order or it has filed a notice of intention to file or a proposal under the Bankruptcy and Insolvency Act (Canada), and a claim for the amount of the corporation’s liability referred to in subsection (1) has been proven within six months after the date of the assignment, receiving order or filing of the proposal; or

(b) the corporation becomes subject to a proceeding to which section 3.6.1 applies and a claim is made under that section during the period beginning on the date on which the Minister should have been advised of the commencement of those proceedings and ending on the date that is six months after the remaining property of the collector, distributor or registered importer has been finally disposed of.  1991, c. 49, s. 22; 1998, c. 30, s. 35; 2011, c. 9, Sched. 16, s. 5.

Prudent director

(3) A director of a corporation is not liable for a failure described in subsection (1) if the director exercised the degree of care, diligence and skill to prevent the failure that a reasonably prudent person would exercise in comparable circumstances.  1991, c. 49, s. 22.

Assessment

(4) The Minister may assess any person for any amount payable by the person under this section and, where the Minister sends a notice of assessment, the sections of this Act respecting assessments, objections and appeals apply with necessary modifications.  1991, c. 49, s. 22.

Time limit

(5) An assessment under subsection (4) shall not be made more than two years after the person last ceased to be a director of the corporation.  1991, c. 49, s. 22.

Execution

(6) If execution referred to in clause (2) (a) has been issued, the amount recoverable from a director is the amount remaining unsatisfied after execution.  1991, c. 49, s. 22.

Idem

(7) If a director of a corporation pays an amount in respect of a corporation’s liability described in subsection (1) that is proved in liquidation, dissolution or bankruptcy proceedings, the director is entitled to any preference that Her Majesty in right of Ontario would be entitled to had the amount not been so paid and, where a warrant of execution has been issued under clause 17 (1) (b), the director is entitled to the assignment of the warrant of execution to the extent of the director’s payment, and the Minister may make the assignment.  1991, c. 49, s. 22.

Allocation by Minister

(8) For the purpose of this section, the Minister may apply any payment or payments made by or on behalf of the corporation under this Act to any of the liabilities described in subsection (1) including penalties and interest relating thereto and to any liability for tax payable under this Act including any penalty and interest relating thereto.  1991, c. 49, s. 22.

Offence

26. (1) Any person who,

(a) destroys or removes, in any manner, the dye or any component of the dye in any coloured fuel;

(b) attempts, in any manner, to destroy or remove the dye or any component of the dye in any coloured fuel; or

(c) mixes or combines coloured fuel with any other type or grade of fuel,

is guilty of an offence and on conviction is liable to a fine of not less than $1,000 and not more than $1,000,000 or to imprisonment for a term of not more than two years, or to both.  1991, c. 49, s. 23.

Penalty

(2) Every dealer who possesses fuel in bulk from which the dye or a component of the dye has been removed or destroyed, or who possesses fuel that is a mixture of coloured fuel and another type or grade of fuel, shall pay a penalty, when the penalty is assessed, equal to three times the tax that would be payable under section 2 if the fuel were clear fuel sold to a purchaser in Ontario.  2006, c. 33, Sched. K, s. 8.

Subsequent penalty

(3) If a penalty is assessed against a dealer under subsection (2) and it is not the first time a penalty under that subsection has been assessed against the dealer, the dealer shall, in addition to the penalty under subsection (2), pay a penalty under this subsection, when the penalty under this subsection is assessed, equal to 10 times the tax that would be payable under section 2 if the fuel were clear fuel sold to a purchaser in Ontario.  2006, c. 33, Sched. K, s. 8.

Offence, seals or labels

(4) Any person who, without the prior written permission of the Minister, removes, breaks or alters a seal or identifying label affixed in accordance with this Act or the regulations to any tank, drum or machine is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $100,000.  1991, c. 49, s. 23.

Offence, stock coloured fuel and clear fuel

(5) Any person who stocks coloured fuel on premises where clear fuel is sold to purchasers is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $100,000.  1991, c. 49, s. 23.

Saving

(6) A person is not liable to prosecution under subsection (5) if the coloured fuel is contained in a separate tank or cistern and the pump delivering the fuel from that separate tank or cistern is clearly marked to indicate that coloured fuel is being delivered.  1991, c. 49, s. 23.

Offence

27. Any person who,

(a) delivers coloured fuel into the fuel tank of a motor vehicle to which a number plate is attached as required under the Highway Traffic Act;

(b) sells coloured fuel knowing that it will be used for a purpose that would render it taxable under this Act,

is guilty of an offence and on conviction is liable to a fine equal to the tax payable with respect to the fuel so sold or delivered plus a fine of not less than $200 and not more than $2,000.  R.S.O. 1990, c. F.35, s. 27; 1994, c. 18, s. 2 (26).

Penalty, re coloured fuel

27.1 (1) Any person who knowingly,

(a) places coloured fuel in a fuel tank of a motor vehicle to which a number plate is attached as required under the Highway Traffic Act;

(b) places coloured fuel in a fuel tank of a motor vehicle or vessel described in clause 2 (6) (b); or

(c) causes coloured fuel to be placed in a fuel tank in violation of clause (a) or (b),

shall pay a penalty, when assessed therefor, equal to three times the tax that would be payable under section 2 if the fuel were clear fuel sold to a purchaser in Ontario.  2008, c. 19, Sched. H, s. 5 (1).

Penalty, operator

(2) The operator of a motor vehicle to which a number plate is attached as required under the Highway Traffic Act that has coloured fuel in a fuel tank shall pay a penalty, when assessed therefor, equal to three times the tax that would be payable under section 2 if the fuel were clear fuel sold to a purchaser in Ontario.  1998, c. 30, s. 36.

Penalty, recreational use

(2.1) Any person who drives a motor vehicle described in clause 2 (6) (b) or operates a vessel described in that clause at a time when coloured fuel is in a fuel tank of the motor vehicle or vessel shall pay a penalty, when assessed therefor, equal to three times the tax that would be payable under section 2 if the fuel were clear fuel sold to a purchaser in Ontario.  2008, c. 19, Sched. H, s. 5 (2).

Penalty, unauthorized fuel

(3) Any person who places unauthorized fuel in a fuel tank of a motor vehicle to which a number plate is attached as required under the Highway Traffic Act or causes unauthorized fuel to be placed in such a fuel tank shall pay a penalty, when assessed therefor, equal to three times the tax that would be payable under section 2 if the fuel were clear fuel sold to a purchaser in Ontario.  1998, c. 30, s. 36.

Penalty, operator

(4) The operator of a motor vehicle to which a number plate is attached as required under the Highway Traffic Act that has unauthorized fuel in a fuel tank shall pay a penalty, when assessed therefor, equal to three times the tax that would be payable under section 2 if the fuel were clear fuel sold to a purchaser in Ontario.  1998, c. 30, s. 36.

Subsequent penalty

(5) In addition to the penalty assessed against a person under subsection (1), (2), (2.1), (3) or (4), a person who again engages in an action described in any of those subsections shall pay a penalty, when assessed therefor, equal to 10 times the tax that would be payable under section 2 if the fuel were clear fuel sold to a purchaser in Ontario.  1998, c. 30, s. 36; 2008, c. 19, Sched. H, s. 5 (3).

Offence

28. Any person who contravenes this Act or the regulations, for which contravention no penalty is otherwise provided, is guilty of an offence and is liable on conviction to a fine of not less than $200 and not more than $5,000.  R.S.O. 1990, c. F.35, s. 28.

Service of offence notice or summons

28.1 In respect of an offence under this Act that involves a motor vehicle, delivery of an offence notice or summons to the driver of the vehicle shall be deemed to be service on the operator of the vehicle for the purposes of Part I of the Provincial Offences Act, unless, at the time of the offence, the vehicle was in the possession of the driver without the operator’s consent.  1991, c. 49, s. 24.

Agreement with the Federal Government

28.1.1 (1) The Minister, on behalf of the Province, may enter into an agreement with the Federal Government respecting the administration and enforcement of this Act.  2001, c. 23, s. 103.

Effect of agreement

(2) The Federal Government is acting as the agent of the Province when providing services under the agreement.  2001, c. 23, s. 103.

Compensation

(3) Amounts owing to the Federal Government under the agreement for providing services shall be paid from amounts collected under the agreement on behalf of the Minister, if the agreement so provides.  2001, c. 23, s. 103.

Protection from liability

(4) No action or proceeding shall be commenced against a person who is acting as agent of the Province under subsection (2) for any act that is in good faith done or omitted in the performance or intended performance of the agent’s duties under this Act or the agreement or in the exercise or intended exercise of the agent’s powers under this Act or the agreement.  2001, c. 23, s. 103.

Liability of the Crown

(5) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (4) does not relieve the Province of a liability to which the Province would otherwise be subject in respect of a tort.  2001, c. 23, s. 103.

Definitions

(6) In this section,

“Federal Government” means Her Majesty in right of Canada or an agency of Her Majesty in right of Canada; (“gouvernement fédéral”)

“Province” means Her Majesty in right of Ontario. (“Province”)  2001, c. 23, s. 103.

Interjurisdictional agreements

28.2 (1) The Minister may enter into a reciprocal agreement with any other jurisdiction, under which the Minister may exempt from some or all of the provisions of this Act persons who use in Ontario clear fuel on which a tax has been paid to the other jurisdiction, on condition that the other jurisdiction grants equivalent privileges with respect to motor fuel that is used there and on which a tax has been paid to Ontario.

International Fuel Tax Agreement

(2) The Minister may join the International Fuel Tax Agreement.

Other agreements

(3) The Minister may enter into a co-operative agreement with any other jurisdiction to permit base jurisdiction licensing of persons who use clear fuel in Ontario.

Contents of agreement

(4) An agreement entered into under subsection (1) or (3) may contain provisions to facilitate its administration and may,

(a) establish a means of determining the base jurisdiction for fuel users;

(b) establish record-keeping requirements for fuel users;

(c) establish audit procedures;

(d) provide for the exchange of information between Ontario and other jurisdictions;

(e) define “qualified motor vehicle” and “motor fuel”;

(f) establish bonding requirements for fuel users;

(g) establish reporting requirements and reporting periods for fuel users;

(h) establish methods of collecting fuel taxes and penalties and forwarding them to other jurisdictions;

(i) provide for the assessment of persons liable to pay tax, and their right to object and appeal.

Regulations

(5) The Lieutenant Governor in Council may make regulations that are necessary or advisable to implement an agreement entered into under this section.

Same

(6) A regulation made under subsection (5) may specify the provisions of the Act that cease to apply to interjurisdictional carriers who adhere to the agreement and the provisions of the agreement that replace those provisions of the Act.  1994, c. 18, s. 2 (27).

Payments under reciprocal agreements

(7) Despite any provision in this or any other Act, where the Minister has entered into an agreement under this section, the Minister may pay to another jurisdiction inside or outside Canada, that part of the tax, and any interest and penalties, collected under this Act that is required to be paid under the agreement.

Payments out of Consolidated Revenue Fund

(8) The Minister shall pay the amounts under subsection (7) out of the Consolidated Revenue Fund.  1996, c. 10, s. 3.

Approval of dye by Minister

28.3 (1) The Minister may approve chemical substances that may be used to colour fuel and establish the quantity of dye in proportion to fuel to be used to colour the fuel.  1998, c. 30, s. 37.

Same

(2) The Minister may establish the quantity of dye for the purposes of the definitions of “clear fuel” and “coloured fuel” in subsection 1 (1).  1998, c. 30, s. 37.

Notice

(3) The Minister shall notify registered dyers of the matters approved or established under this section.  1998, c. 30, s. 37.

Legislation Act, 2006, Part III

(4) Part III (Regulations) of the Legislation Act, 2006 does not apply with respect to the matters approved or established under this section.  1998, c. 30, s. 37; 2006, c. 21, Sched. F, s. 136 (1).

Regulations

29. (1) The Lieutenant Governor in Council may make regulations,

(a) excluding products from this Act;

(b) exempting any class of persons from the payment of the tax imposed under this Act;

(c) exempting from a part or all of the tax imposed by this Act fuel that will be used by specified persons or in a specified manner or in a specified type of machinery or class of industry, and relieving collectors from their obligation of collecting a part or all of the tax on fuel so used;

(d) providing for the furnishing to the Minister by persons of information relating to the sale or delivery by them of fuel that is exempt from the tax imposed by this Act;

(e) prescribing rates of interest payable under this Act;

(f) providing for the calculation and payment of interest on amounts paid in excess of the tax imposed by this Act, and prescribing the rate of such interest;

(g) providing for the refund in special circumstances of the whole or any part of the tax imposed by this Act, and prescribing the terms and conditions under which such refund may be made;

(h) Repealed:  1994, c. 18, s. 2 (28).

(i) prescribing a system of compensation to reimburse registered dyers for a part or all of their costs incurred in colouring fuel, fixing the rate or rates of compensation to be paid to registered dyers per litre of fuel coloured, and providing for the maximum amount of compensation to registered dyers and for the method by which the compensation may be paid;

(j) defining any word or expression used in this Act that has not already been expressly defined in this Act;

(k) respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act.  R.S.O. 1990, c. F.35, s. 29 (1); 1991, c. 49, s. 25 (1); 1994, c. 18, s. 2 (28).

Regulations by Minister

(2) The Minister may make regulations,

(a) Repealed:  1997, c. 19, s. 7 (6).

(b) providing for the refund of any tax or any portion thereof paid under this Act to any purchaser or class of purchasers and prescribing the records and material to be furnished upon application for a refund;

(c) prescribing purposes for which fuel is used that are excluded from the application of section 21;

(d) prescribing additional information to be contained in any fuel acquisition permit or registration certificate issued under this Act, and attaching additional conditions to the use of any such permit or certificate;

(e) prescribing records to be kept by persons, information to be shown and a return to be delivered by a person, and prescribing times or periods of time, in lieu of those mentioned in section 10, and which, or with respect to which, a return shall be delivered by any person or class of persons;

(f) prescribing, for the purpose of subsection 4.11 (2), any manner of disposing of or consuming fuel;

(g) prescribing conditions and restrictions that shall apply in respect of interjurisdictional carriers, interjurisdictional transporters, registered dyers, registered importers, registered exporters and registered consumers, and the method of paying the tax imposed by this Act to be followed by all interjurisdictional carriers;

(h) governing the issuance and use of registration decals;

(i) prescribing the method of collecting and paying or transmitting the tax imposed by this Act to be followed by collectors, distributors, registered importers and interjurisdictional carriers;

(j) prescribing the processes which a registered dyer shall use to colour and dispense coloured fuel, the time and manner of accounting for dye by a registered dyer and the use that may be made of dye by any other person;

(k) prescribing standards and requirements for equipment to be used in colouring fuel;

(l) prescribing additional conditions under which fuel may be coloured using a manual process;

(m) prescribing the responsibilities of registered dyers for the receipt, safe custody, use and accounting for dye and to allow seals as provided by the Minister, to be affixed as deemed appropriate by a person authorized by the Minister for this purpose, to dye injector equipment;

(n) prescribing conditions under which an importer shall colour fuel;

(o) prescribing anything referred to in this Act as prescribed by the Minister;

(p) prescribing classes of interjurisdictional carriers whose members are required to each hold a certificate of registration and classes of interjurisdictional carriers whose members are required to each apply for an Ontario trip registration certificate under section 4.13;

(q) prescribing the location on equipment used to colour, store, transport or deliver coloured fuel where identifying labels or seals must be affixed;

(r) prescribing the time and manner for delivering a return under subsection 10 (1);

(s) prescribing percentages for the purposes of clauses 4.17 (2) (b) and (2.1) (b) and subsection 4.17 (3);

(t) Repealed:  1997, c. 19, s. 7 (8).

(u) prescribing information to be included on invoices for the purposes of section 6;

(v) prescribing the fuel that distributors are permitted to sell, additional conditions to be met by distributors and requirements for facilities owned or operated by distributors;

(w) prescribing one or more methods for calculating unverifiable losses and excess unverifiable losses, for the purposes of subsection 13 (4.2), and prescribing one or more thresholds for the purposes of that subsection.  R.S.O. 1990, c. F.35, s. 29 (2); 1991, c. 49, s. 25 (2-10); 1997, c. 19, s. 7 (6-8); 1998, c. 30, s. 38 (1-3); 2001, c. 23, s. 104; 2002, c. 22, s. 83.

General or specific

(2.1) A regulation made under clause (2) (i) may be general or particular in its application and may be limited to specific types of collectors, distributors or registered importers.  1998, c. 30, s. 38 (4).

Retroactivity

(3) A regulation is, if it so provides, effective with reference to a period before it was filed and not earlier than the 1st day of September, 1982.  R.S.O. 1990, c. F.35, s. 29 (3).

Forms

30. (1) The Minister may approve the use of forms for any purpose of this Act and the forms may provide for such information to be furnished as the Minister may require.

Fees

(2) The Minister may establish and charge fees for anything that the Minister or the Ministry is required or authorized to do under this Act.  1997, c. 19, s. 7 (9).

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