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Alcohol and Gaming Regulation and Public Protection Act, 1996

S.O. 1996, CHAPTER 26
Schedule

Consolidation Period: From July 1, 2011 to the e-Laws currency date.

Last amendment: 2011, c. 9, Sched. 2.

SKIP TABLE OF CONTENTS

CONTENTS

PART I
ALCOHOL AND GAMING COMMISSION OF ONTARIO

1.

Definitions

2.

Commission established

3.

Duty of Commission

4.

Powers of Commission

5.

Delegation of powers and duties

6.

Registrar

7.

Employees

8.

Funding

9.

Annual report

13.

Registrar’s certificate

14.

Fees and charges

14.1

Monetary penalties

15.

Information

16.

Regulations

PART II
BEER AND WINE TAX

Division A — Interpretation and Obligation to Pay Tax

17.

Definitions

18.

Purchaser subject to tax

18.1

Exemption for promotional distribution

19.

No exemption under another statute unless this Act named

Division B — Calculation of Tax

20.

Application

beer

21.

Basic tax, beer made by beer manufacturer

22.

Exception, beer made by microbrewer

23.

Volume tax

24.

Environmental tax

25.

Beer made at brew pub

26.

Annual adjustment to rate of basic tax

wine and wine coolers

27.

Basic tax

28.

Volume tax

29.

Environmental tax

Division C — Tax Collection and Remittance

beer

30.

Tax collection and remittance

30.1

Right to sit as member of Assembly

wine and wine coolers

31.

Method of tax collection, wine and wine coolers

payments in lieu of tax

31.1

Amounts in lieu of tax

Division D — Administration

32.

Definition

33.

Tax held in trust

34.

Security

35.

Assignment of book debts

36.

Requirement to submit returns

37.

Records and books of account

38.

Audit and examination

39.

Demand for information

40.

Assessment of tax collected

41.

Penalty for non-collection

42.

Assessing purchasers and collectors

43.

Requirement to pay penalties

44.

Interest

45.

Notice of assessment

46.

Overpayments

47.

Refund to beer vendor, sale on reserve

47.1

Statement of disallowance

48.

Assessment re excess refund

49.

Penalty, misrepresentation in application for refund

50.

Recovery of amounts payable under this Part

50.1

Recovery of costs

51.

Lien on real property

52.

Garnishment

53.

Assessment, non-arm’s length transfers

54.

Liability of corporate directors

54.1

Fees under s. 8.1 of the Financial Administration Act

objections and appeals

55.

Notice of objection

56.

Appeal

57.

Irregularities, etc., directory provisions

58.

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

59.

Extension of time to object or appeal

59.1

Objection and appeal of refund disallowance

offences

60.

Offences

evidence

61.

Admission of evidence

confidentiality

62.

Confidentiality

the commission

63.

Commission functions

64.

Commission resolutions revoked

tax-included pricing

65.

Tax-included pricing

Division E — Retroactive Tax

66.

Application

draft and non-draft beer

67.

Tax, beer

wine and wine coolers

68.

Tax, wine and wine coolers

tax collection

69.

Tax deemed to be paid

Division F — Forms and Regulations

70.

Forms

71.

Regulations

Division G — Transitional

72.

Inventory report

PART I
ALCOHOL AND GAMING COMMISSION OF ONTARIO

Definitions

1.  In this Part,

“chair” means the chair of the board of the Commission designated under subsection 2 (6); (“président”)

“Commission” means the Alcohol and Gaming Commission of Ontario established under section 2; (“Commission”)

“Minister” means the minister responsible for the administration of this Part; (“ministre”)

“Registrar” means the Registrar of Alcohol and Gaming under section 6; (“registrateur”)

“Tribunal” means the Licence Appeal Tribunal established under the Licence Appeal Tribunal Act, 1999 or whatever other tribunal is prescribed by the regulations made under this Part. (“Tribunal”) 1996, c. 26, Sched., s. 1; 2009, c. 34, Sched. A, s. 1; 2011, c. 1, Sched. 1, s. 1 (1).

Commission established

2.  (1)  There is hereby established a corporation without share capital to be known in English as the Alcohol and Gaming Commission of Ontario and in French as the Commission des alcools et des jeux de l’Ontario. 1996, c. 26, Sched., s. 2 (1).

Board of directors

(2)  The Commission shall have a board of directors consisting of the members appointed under subsection (3). 1996, c. 26, Sched., s. 2 (2).

Appointment of members

(3)  All of the members of the board, of whom there shall be at least five, shall be appointed by the Lieutenant Governor in Council. 1996, c. 26, Sched., s. 2 (3).

(4)  Repealed: 2006, c. 34, s. 27.

Quorum

(5)  A majority of the members constitutes a quorum for  meetings of the board and may exercise the powers of the board. 1996, c. 26, Sched., s. 2 (5).

Chair and vice-chair

(6)  The Lieutenant Governor in Council shall designate one of the members as chair of the board and may designate one or more members as vice-chairs. 1996, c. 26, Sched., s. 2 (6).

Chair’s duty

(7)  The chair shall preside over the meetings of the board. 1996, c. 26, Sched., s. 2 (7).

Acting chair

(8)  If the chair is absent or otherwise unavailable to act or if the office of chair is vacant, a vice-chair shall act as and have all the powers of the chair. 1996, c. 26, Sched., s. 2 (8).

Non-application of Acts

(9)  The Corporations Act and the Corporations Information Act do not apply to the Commission. 1996, c. 26, Sched., s. 2 (9).

Duty of Commission

3.  (1)  In addition to its powers and duties under this Act, the Commission shall be responsible for the administration of the Liquor Licence Act, the Gaming Control Act, 1992, the Wine Content and Labelling Act, 2000 and the regulations made under those Acts. 1996, c. 26, Sched., s. 3 (1); 2006, c. 34, s. 1 (1).

Same

(2)  In addition to its powers and duties under this Act, the Commission shall exercise those powers and duties under the Liquor Control Act and the regulations made under it that are assigned to it by the Lieutenant Governor in Council. 1996, c. 26, Sched., s. 3 (2).

Public interest

(3)  The Commission shall exercise its powers and duties in the public interest and in accordance with the principles of honesty and integrity, and social responsibility. 1996, c. 26, Sched., s. 3 (3).

Same

(4)  The board of the Commission shall,

(a) inform and advise the Minister with respect to matters that are of an urgent, critical or relevant nature and that are likely to require action by the Commission or the Minister to ensure that the administration of the Acts referred to in subsections (1) and (2) is carried out properly; and

(b) advise or report to the Minister on any matter that the Minister may refer to the Commission relating to this Act or to the administration of the Acts referred to in subsections (1) and (2). 1996, c. 26, Sched., s. 3 (4).

Powers of Commission

4.  Without limiting the powers or capacities of the Commission, the board of the Commission may establish guidelines governing the exercise of any of the powers and duties under this Act or the administration of the Acts referred to in section 3. 1996, c. 26, Sched., s. 4; 2011, c. 1, Sched. 1, s. 1 (2).

Delegation of powers and duties

5.  The board of the Commission may delegate in writing any of its powers and duties to any person or persons employed by the Commission and any such delegation is subject to any conditions set out in the delegation. 1996, c. 26, Sched., s. 5.

Registrar

6.  (1)  There shall be a Registrar of Alcohol and Gaming for the purposes of this Act, the Liquor Licence Act and the Gaming Control Act, 1992 and the regulations made under them. 1996, c. 26, Sched., s. 6 (1).

Deputy Registrars

(2)  The Registrar may appoint one or more Deputy Registrars and may delegate his or her powers or duties to them, subject to any conditions set out in the delegation. 1996, c. 26, Sched., s. 6 (2).

Employees

7.  (1)  Such employees as the Commission may require may be appointed under this Act. 1996, c. 26, Sched., s. 7 (1).

Same

(2)  Subject to the approval of the Lieutenant Governor in Council, the board of the Commission shall establish job categories, salary ranges and terms and conditions of employment for its employees. 1996, c. 26, Sched., s. 7 (2).

Funding

8.  (1)  Money required for the purposes of this Part shall be paid out of the money appropriated for those purposes by the Legislature. 2009, c. 34, Sched. A, s. 2 (1).

Money from the Ontario Lottery and Gaming Corporation

(2)  Subject to the approval of Treasury Board, the board of the Commission may direct the Ontario Lottery and Gaming Corporation to pay to the Commission such money as the board directs, and that money may be used for the purposes of the Commission. 2002, c. 18, Sched. E, s. 1; 2009, c. 34, Sched. A, s. 2 (2).

Annual report

9.  (1)  Not later than September 30 in each year, the board of the Commission shall make an annual report to the Minister on the activities and affairs of the Commission to March 31 of the year. 1996, c. 26, Sched., s. 9 (1).

Form and contents

(2)  The annual report shall be in a form acceptable to the Minister and shall provide the particulars that the Minister requires. 1996, c. 26, Sched., s. 9 (2).

Tabling

(3)  The Minister shall submit the report to the Lieutenant Governor in Council and shall then lay the report before the Assembly if it is in session or, if not, at the next session. 1996, c. 26, Sched., s. 9 (3).

10.-12.  Repealed: 2011, c. 1, Sched. 1, s. 1 (3).

Registrar’s certificate

13.  (1)  The Registrar may issue a signed certificate that contains information concerning,

(a) the issuance or non-issuance of a licence or permit under the Liquor Licence Act;

(b) the registration or non-registration of any person;

(c) the filing or non-filing of any document or material required or permitted to be filed with the Commission;

(d) the time when the facts upon which a proceeding is based first came to the knowledge of the Registrar; and

(e) any other matter pertaining to licences or permits under the Liquor Licence Act, registration or non-registration, filing or non-filing. 1996, c. 26, Sched., s. 13 (1).

Admissibility of certificate

(2)  The certificate is, without proof of the office or signature of the Registrar, receivable in evidence in any proceeding as proof, in the absence of evidence to the contrary, of the facts stated in the certificate. 1996, c. 26, Sched., s. 13 (2).

Fees and charges

14.  The board of the Commission may establish, subject to the approval of the Minister, fees or other charges and provide for refunds for the purposes of this Part, the administration of the Acts referred to in section 3 or the regulations made under them. 1996, c. 26, Sched., s. 14; 2009, c. 34, Sched. A, s. 4; 2011, c. 1, Sched. 1, s. 1 (4).

Monetary penalties

14.1  (1)  The board of the Commission may establish, subject to the approval of the Minister, a schedule of monetary penalties that may be imposed with respect to contraventions of those Acts and regulations administered by the Commission that are prescribed by the regulations made under this Part. 2006, c. 34, s. 1 (2); 2011, c. 1, Sched. 1, s. 1 (5).

Registrar’s power to impose penalty

(2)  The Registrar may impose monetary penalties set out in the schedule established by the board of the Commission. 2006, c. 34, s. 1 (2).

Guidelines to be considered

(3)  In deciding to impose a monetary penalty, the Registrar shall have regard to the guidelines governing the imposition of such penalties established by the board under section 4. 2006, c. 34, s. 1 (2).

Use of money

(4)  Money received from monetary penalties may be used for the following purposes only:

1. Public awareness, education and training programs for the general public in relation to alcohol and gaming.

2. Education and training programs for licence holders, permit holders and other persons governed by the Acts and regulations administered by the Commission that are prescribed by the regulations made under this Part. 2006, c. 34, s. 1 (2); 2011, c. 1, Sched. 1, s. 1 (6).

Appeal

(5)  A person on whom a monetary penalty is imposed may appeal to the Tribunal by serving a written request on the Tribunal and the Registrar within 15 days after the Registrar serves notice of the monetary penalty. 2011, c. 1, Sched. 1, s. 1 (7).

Procedure on appeal

(6)  If a person appeals in accordance with subsection (5), a hearing shall be held in accordance with the Licence Appeal Tribunal Act, 1999. 2011, c. 1, Sched. 1, s. 1 (7).

Power of Tribunal on hearing

(7)  Upon holding the hearing, the Tribunal may confirm the monetary penalty or set it aside. 2011, c. 1, Sched. 1, s. 1 (7).

Decision final

(8)  A decision of the Tribunal under subsection (7) is final and not subject to appeal to the Divisional Court. 2011, c. 1, Sched. 1, s. 1 (7).

Information

15.  The board of the Commission may require that any information under this Part or related to the administration of the Acts referred to in section 3 be provided in a manner approved by the board. 1996, c. 26, Sched., s. 15; 2009, c. 34, Sched. A, s. 5; 2011, c. 1, Sched. 1, s. 1 (8).

Regulations

16.  The Lieutenant Governor in Council may make regulations,

(a) assigning the exercise of the powers and duties set out in the Liquor Licence Act, the Gaming Control Act, 1992, the Wine Content and Labelling Act, 2000 and the regulations made under them to the board of the Commission or the Registrar, as the Lieutenant Governor in Council considers advisable;

(b) assigning the exercise of any power or duty under the Liquor Control Act and the regulations made under it to the board of the Commission or the Registrar, as the Lieutenant Governor in Council considers advisable;

(b.1) prescribing Acts and regulations for the purposes of section 14.1;

(c) respecting any matter necessary to facilitate the implementation of this Part. 1996, c. 26, Sched., s. 16; 2006, c. 34, s. 1 (3, 4); 2009, c. 34, Sched. A, s. 6.

PART II
BEER AND WINE TAX

Division A — Interpretation and Obligation to Pay Tax

Definitions

17.  (1)  In this Part,

“agency store” means a government store established under the Agency Store Program by the Board under its authority described in clause 3 (1) (d) of the Liquor Control Act; (“magasin-agence”)

“annual adjustment date” means the day prescribed by the Minister for the purposes of section 26; (“date de rajustement annuel”)

“authorized beer manufacturer” means a beer manufacturer licensed under the Liquor Licence Act to sell beer to the Board and includes a manufacturer that has been authorized under the Liquor Control Act to sell its beer in stores that it owns and operates; (“fabricant de bière autorisé”)

“beer” means a beverage that is beer for the purposes of the Liquor Licence Act, but does not include a beverage purporting to be beer that contains alcohol obtained by a means other than the fermentation of an infusion or decoction of barley, malt and hops or similar products if the alcohol so obtained increases the total alcohol content of the beverage by more than 0.5 per cent by volume; (“bière”)

“beer manufacturer” means,

(a) a person who makes beer in Ontario for sale in Ontario, other than a holder of a licence with a brew pub endorsement,

(b) a person in Ontario who sells beer in Ontario that is made in Ontario under contract by a person described in clause (a), or

(c) a person who makes beer in a province or territory of Canada other than Ontario and who, for the purpose of selling the beer to purchasers in Ontario, ships the beer to a facility in Ontario,

(i) at which the person or a wholly-owned subsidiary of the person makes beer at an annual production rate of not less than 2,500 hectolitres of beer, and

(ii) at which the annual production capacity is not less than 10,000 hectolitres of beer; (“fabricant de bière”)

“beer vendor” means,

(a) an authorized beer manufacturer,

(b) Brewers’ Retail Inc.,

(c) the operator of an agency store, or

(d) a licensee; (“vendeur de bière”)

“Board” means the Liquor Control Board of Ontario; (“Régie”)

“brew pub” means premises for which the licensee holds a licence with a brew pub endorsement; (“bistrot-brasserie”)

“Commission” means the Alcohol and Gaming Commission of Ontario established under section 2; (“Commission”)

“draft beer” means,

(a) beer made by a beer manufacturer other than non-draft beer, or

(b) beer made at a brew pub; (“bière pression”)

“increase date” means, with respect to a basic rate of tax on the purchase of beer, the date on which an increase to the rate of basic tax payable by a purchaser under section 21, 22 or 25 takes effect in accordance with section 26 or otherwise under this Act; (“date d’augmentation”)

“licence” means a liquor sales licence issued under the Liquor Licence Act; (“permis”)

“licensee” means a person who holds a licence or permit issued under the Liquor Licence Act; (“titulaire de permis”)

“Minister” means the Minister of Revenue or such other member of the Executive Council as may be designated under the Executive Council Act to administer this Part; (“ministre”)

“non-draft beer” means beer made by a beer manufacturer for sale in containers each of which has a capacity of less than 18 litres; (“bière non pression”)

“non-refillable container” means a container that the manufacturer of a beverage or other person who initially fills the container with the beverage does not intend to refill; (“contenant à remplissage unique”)

“Ontario wine” means wine that is Ontario wine for the purposes of the Liquor Licence Act; (“vin de l’Ontario”)

“Ontario wine cooler” means Ontario wine or a beverage containing Ontario wine that contains not more than 7 per cent alcohol by volume; (“vin panaché de l’Ontario”)

“production year” means, in relation to a sales year for beer, the 12-month period that ends on the December 31 immediately before the beginning of the sales year; (“année de production”)

“purchaser” means a person, including the Crown in right of Ontario, who purchases or receives delivery of beer, wine or a wine cooler in Ontario,

(a) for use or consumption by the person or by someone else at the person’s expense, or

(b) on behalf of or as agent for a principal who desires to acquire the beer, wine or wine cooler for use or consumption by the principal or by someone else at the principal’s expense; (“acheteur”)

“regulations” means the regulations made under this Part, unless the context requires otherwise; (“règlements”)

“sales year” means, with respect to beer, a period of approximately 12 months,

(a) that begins on March 1 in a year or, if March 1 is a Saturday or Sunday, that begins on the following Monday, and

(b) that ends on the last day of February in the following year or, if the last day of February is a Friday or Saturday, that ends on the following Sunday; (“année de ventes”)

“wine” means a beverage that is wine for the purposes of the Liquor Licence Act; (“vin”)

“wine cooler” means wine or a beverage containing wine that contains not more than 7 per cent alcohol by volume; (“vin panaché”)

“winery” means a person licensed under the Liquor Licence Act to sell wine or wine coolers to the Board and includes a manufacturer that is authorized under the Liquor Control Act to sell its wine and wine coolers in stores that it owns and operates; (“établissement vinicole”)

“winery retail store” means a store in Ontario owned and operated by a winery at which a winery is authorized under clause 3 (1) (e) of the Liquor Control Act to sell wine and wine coolers to purchasers. (“magasin de détail d’établissement vinicole”) 2009, c. 34, Sched. A, s. 7; 2010, c. 26, Sched. 1, s. 1 (1); 2011, c. 1, Sched. 1, s. 1 (9); 2011, c. 9, Sched. 2, s. 1 (1).

Persons deemed to be purchasers

(2)  The following persons are deemed to be purchasers in the following circumstances:

1. A beer manufacturer or licensee of a brew pub that distributes beer in Ontario without charge, but only with respect to the beer distributed without charge.

2. A beer vendor that purchases beer in Ontario that is not sold to another person, but only with respect to the beer that is purchased and not sold.

3. A winery that distributes wine or wine coolers in Ontario without charge, but only with respect to the wine or wine coolers distributed without charge.

4. A winery that purchases wine or wine coolers in Ontario that are not sold to another person, but only with respect to the wine or wine coolers that are purchased and not sold. 2009, c. 34, Sched. A, s. 7; 2010, c. 26, Sched. 1, s. 1 (2, 3); 2011, c. 9, Sched. 2, s. 1 (2).

When purchaser is not subject to tax

(3)  A purchaser is not subject to tax under this Act in respect of the purchase of beer, wine or a wine cooler,

(a) if the purchase is from the Board or from a person who previously purchased the beer, wine or wine cooler from the Board;

(b) if the purchase is from a duty-free store within the meaning of subsection 2 (1) of the Customs Act (Canada);

(c) if the purchase is of beer or wine made by the purchaser at a location that is a ferment on premises facility for the purposes of the Liquor Licence Act;

(d) if the purchaser is an Indian and the purchase of the beer, wine or wine cooler,

(i) is made on a reserve,

(ii) is from a beer vendor, winery retail store or licensee located on the reserve, and

(iii) is for the exclusive use of an Indian;

(e) if the purchaser is a person serving in or employed by a diplomatic or consular mission, high commission or trade commission, as authorized by Foreign Affairs and International Trade Canada, or his or her spouse or a family member,

(i) if that person is not a Canadian citizen or “permanent resident” of Canada as defined in the Immigration and Refugee Protection Act (Canada), and

(ii) if that person is assigned to duty from the state he or she represents and is not engaged locally by the mission or commission; or

(f) if the purchase is of wine sold by the glass pursuant to a manufacturer’s limited liquor sales licence authorized by the regulations made under the Liquor Licence Act. 2009, c. 34, Sched. A, s. 7.

Interpretation, cl. (3) (d)

(4)  For the purposes of clause (3) (d),

“Indian” has the meaning assigned by subsection 2 (1) of the Indian Act (Canada); (“Indien”)

“reserve” means a reserve within the meaning of the Indian Act (Canada) or an Indian settlement located on Crown land, the Indian inhabitants of which are treated by the Government of Canada in the same manner as Indians residing on a reserve. (“réserve”) 2009, c. 34, Sched. A, s. 7.

Affiliates

(5)  For the purposes of this Act, a corporation is an affiliate of another corporation if one of them is the subsidiary of the other, if both are subsidiaries of a third corporation or if each of them is controlled by the same person or persons. 2009, c. 34, Sched. A, s. 7.

Rules, re affiliates

(6)  The following rules apply for the purposes of determining if corporations are affiliates for the purposes of this Act:

1. A corporation is a subsidiary of a particular corporation if,

i. it is controlled,

A. by the particular corporation,

B. by the particular corporation and one or more other corporations each of which is controlled by the particular corporation, or

C. by two or more corporations each of which is controlled by the particular corporation, or

ii. it is a subsidiary of a corporation that is the particular corporation’s subsidiary under subparagraph i.

2. A particular corporation is controlled by another person or corporation or by two or more corporations if,

i. voting securities of the particular corporation carrying more than 50 per cent of the votes for the election of directors are held, otherwise than by way of security only, by or for the benefit of the other person or corporation or by or for the benefit of the other corporations, and

ii. the votes carried by the voting securities described in subparagraph i are entitled, if exercised, to elect a majority of the board of directors of the particular corporation.

3. For the purposes of paragraph 2,

i. a person is deemed to own beneficially securities that are beneficially owned by a corporation controlled by the person or by an affiliate of that corporation, and

ii. a corporation is deemed to own beneficially securities that are beneficially owned by its affiliates.

4. Unless the regulations provide otherwise, references in paragraphs 2 and 3 to securities are references to securities within the meaning of the Securities Act. 2009, c. 34, Sched. A, s. 7.

Purchaser subject to tax

18.  Every purchaser who purchases beer, wine or a wine cooler in Ontario shall pay taxes in respect of the purchase at the time of the purchase to the Crown in right of Ontario in accordance with this Part, unless otherwise provided in this Part or the regulations. 2009, c. 34, Sched. A, s. 7.

Exemption for promotional distribution

Beer manufacturer

18.1  (1)  A beer manufacturer and its affiliates are not subject to tax under this Act on a maximum of 10,000 litres of beer that is distributed by any of them in Ontario without charge during a sales year that begins on or after March 1, 2011. 2011, c. 9, Sched. 2, s. 2.

Same, transition

(2)  A beer manufacturer and its affiliates are not subject to tax under this Act on a maximum of 6,667 litres of beer that was distributed by any of them in Ontario without charge during the period that began on July 1, 2010 and ended on February 28, 2011. 2011, c. 9, Sched. 2, s. 2.

Licensee of a brew pub

(3)  A licensee of a brew pub and its affiliates are not subject to tax under this Act on a maximum of 10,000 litres of beer made at the brew pub that is distributed by any of them in Ontario without charge during a sales year that begins on or after March 1, 2011. 2011, c. 9, Sched. 2, s. 2.

Same, transition

(4)  A licensee of a brew pub and its affiliates are not subject to tax under this Act on a maximum of 6,667 litres of beer made at the brew pub that was distributed by any of them in Ontario without charge during the period that began on July 1, 2010 and ended on February 28, 2011. 2011, c. 9, Sched. 2, s. 2.

Winery

(5)  A winery and its affiliates are not subject to tax under this Act on a maximum of 10,000 litres of wine and wine coolers that is distributed by any of them in Ontario without charge during a 12-month period that begins on July 1, 2010 or on a subsequent July 1. 2011, c. 9, Sched. 2, s. 2.

Apportionment of exemption, beer

(6)  If the aggregate total of the beer distributed by a beer manufacturer and its affiliates or by a licensee of a brew pub and its affiliates, as the case may be, without charge during a sales year exceeds the amount specified under this section that is exempt from tax, the exemption may be apportioned among them in proportion to their share of the aggregate total or otherwise. 2011, c. 9, Sched. 2, s. 2.

Same

(7)  If a beer manufacturer or a licensee of a brew pub carries on business in Ontario for only part of a sales year, the amount of the beer manufacturer’s or licensee’s exemption from taxation under this section during that sales year is reduced proportionately. 2011, c. 9, Sched. 2, s. 2.

Same, transition

(8)  Subsections (6) and (7) apply, with necessary modifications, in relation to the period described in subsection (2) or (4). 2011, c. 9, Sched. 2, s. 2.

Apportionment of exemption, wine and wine coolers

(9)  If the aggregate total of the wine and wine coolers distributed by a winery and its affiliates without charge during a 12-month period described in subsection (5) exceeds the amount specified under this section that is exempt from tax, the exemption may be apportioned among them in proportion to their share of the aggregate total or otherwise. 2011, c. 9, Sched. 2, s. 2.

Same

(10)  If a winery carries on business in Ontario for only part of a 12-month period described in subsection (5), the amount of the winery’s exemption from taxation under this section is reduced proportionately. 2011, c. 9, Sched. 2, s. 2.

No exemption under another statute unless this Act named

19.  No person who is subject to tax under this Part is exempt from any tax payable under this Part by reason of an exemption granted to the person or to or in respect of the personal property of the person by or under another Act, unless the provision of the other Act expressly states that the exemption is from tax under this Act. 2009, c. 34, Sched. A, s. 7.

Division B — Calculation of Tax

Application

20.  This Division applies to purchasers in respect of purchases of beer, wine and wine coolers on and after July 1, 2010. 2010, c. 26, Sched. 1, s. 2.

beer

Basic tax, beer made by beer manufacturer

21.  (1)  A purchaser who purchases beer manufactured by a beer manufacturer shall pay a basic tax in respect of the purchase, calculated at the basic tax rate. 2009, c. 34, Sched. A, s. 7.

Basic tax rate

(2)  The basic tax rate for the purposes of subsection (1) in respect of a purchase before the first annual adjustment date is,

(a) 54.75 cents per litre if the beer is draft beer; or

(b) 69.75 cents per litre if the beer is non-draft beer. 2009, c. 34, Sched. A, s. 7.

Same

(3)  The basic tax rate for the purposes of subsection (1) in respect of a purchase on or after the first annual adjustment date is the rate determined under section 26. 2009, c. 34, Sched. A, s. 7.

Transition, after change in tax rate

(4)  Despite subsections (1), (2) and (3) and section 22, if the beer sold to the purchaser was received by the beer vendor before an increase date and then sold to the purchaser on or after the increase date, the basic tax payable by the purchaser in respect of the purchase of the beer shall be calculated at the basic tax rate in effect immediately before the increase date. 2010, c. 26, Sched. 1, s. 3.

Exception, beer made by microbrewer

22.  (1)  Despite section 21, the basic tax rate per litre in respect of the purchase of beer manufactured by a beer manufacturer that is a microbrewer for the sales year in which the beer is sold is the following:

1. If the beer is draft beer, the rate determined by subtracting 36.49 cents from,

i. the basic tax rate for draft beer under clause 21 (2) (a), or

ii. if the beer is sold after the first annual adjustment date, the basic tax rate under clause 21 (2) (a) as adjusted annually under subsection 21 (3).

2. If the beer is non-draft beer, the rate determined by subtracting 49.99 cents from,

i. the basic tax rate for non-draft beer under clause 21 (2) (b), or

ii. if the beer is sold after the first annual adjustment date, the basic tax rate under clause 21 (2) (b) as adjusted annually under subsection 21 (3). 2010, c. 1, Sched. 1, s. 1 (1).

(2)  Repealed: 2010, c. 1, Sched. 1, s. 1 (1).

Microbrewers

(3)  For the purposes of this section, a beer manufacturer is a microbrewer for a sales year if,

(a) its worldwide production of beer in the previous production year was not more than 50,000 hectolitres or, if this is the first production year in which it manufactures beer, its worldwide production of beer for the production year is expected to be not more than 50,000 hectolitres;

(b) it has not entered into any agreement or other arrangement pursuant to which any beer manufacturer that is not a microbrewer manufactures beer for it;

(b.1) it has not entered into any agreement or other arrangement pursuant to which it manufactures beer for any beer manufacturer that is not a microbrewer; and

(c) any affiliate it has that manufactures beer is a microbrewer. 2009, c. 34, Sched. A, s. 7; 2010, c. 1, Sched. 1, s. 1 (2); 2010, c. 26, Sched. 1, s. 4.

Worldwide production of beer

(4)  The following shall be included in determining the amount of a microbrewer’s worldwide production of beer for a particular production year for the purposes of this section:

1. All beer manufactured during the production year by the microbrewer, including beer that is manufactured under contract for another beer manufacturer.

2. All beer manufactured during the production year by an affiliate of the microbrewer, including beer manufactured by the affiliate under contract for another beer manufacturer.

3. All beer manufactured during the production year by another microbrewer under contract for the microbrewer or for an affiliate of the microbrewer. 2009, c. 34, Sched. A, s. 7; 2010, c. 1, Sched. 1, s. 1 (3).

Transition re sales year

(5)  For the purposes of this section, the regulations may assign a different meaning to “sales year” for a period that ended before March 1, 2011. 2011, c. 9, Sched. 2, s. 3.

List of microbrewers

(6)  The Minister shall compile annually and make available to the public for each sales year a list containing the names of beer manufacturers that are microbrewers for the sales year and the names of the brands of beer they manufacture. 2009, c. 34, Sched. A, s. 7.

Volume tax

23.  A purchaser of draft or non-draft beer manufactured by a beer manufacturer shall pay a volume tax in respect of the purchase at the volume tax rate of 17.6 cents per litre of beer. 2009, c. 34, Sched. A, s. 7.

Environmental tax

24.  A purchaser of non-draft beer or draft beer manufactured by a beer manufacturer shall pay an environmental tax of 8.93 cents for each non-refillable container in which the beer is purchased. 2009, c. 34, Sched. A, s. 7.

Beer made at brew pub

25.  (1)  A purchaser of draft beer that was made at a brew pub in Ontario by the holder of the licence with a brew pub endorsement for that brew pub shall pay a basic tax in respect of the purchase if the beer is purchased at the brew pub or at a secondary location related to the brew pub. 2009, c. 34, Sched. A, s. 7.

Basic tax rate

(2)  The basic tax rate for the purposes of subsection (1) is,

(a) 20.90 cents per litre if the purchase is before the first annual adjustment date; or

(b) the rate determined under section 26 if the purchase is on or after the first annual adjustment date. 2009, c. 34, Sched. A, s. 7.

Secondary location related to brew pub

(3)  A place is a secondary location related to a brew pub for the purposes of this Part if the following conditions are satisfied:

1. Draft beer made at the brew pub is sold to a purchaser at the place.

2. The place is not part of the brew pub.

3. There is a valid licence for the place or the sale of the draft beer at that place is made in accordance with a caterer’s endorsement attached to the licence for the brew pub.

4. If a separate licence for the place is in effect, the holder of the licence for the brew pub has a direct or indirect ownership interest of at least 51 per cent in the business that sells beer at the place. 2009, c. 34, Sched. A, s. 7.

Transition, after change in tax rate

(4)  Despite subsections (1) and (2), if the draft beer sold to the purchaser was made at the brew pub before the increase date and then sold to the purchaser on or after the increase date, the basic tax payable by the purchaser in respect of the purchase of the draft beer shall be calculated at the basic tax rate in effect immediately before the increase date. 2010, c. 26, Sched. 1, s. 5.

Annual adjustment to rate of basic tax

26.  (1)  The rate of basic tax payable by a purchaser under sections 21 and 25 in respect of the purchase of beer shall be adjusted annually in accordance with this section as of each annual adjustment date. 2010, c. 1, Sched. 1, s. 2 (1).

Calculation of basic tax rate

(2)  Each basic tax rate, expressed in cents per litre, that is in effect for the period commencing on an annual adjustment date and ending on the day before the next annual adjustment date is calculated using the formula,

A + (A × B)

in which,

“A” is the amount of basic tax per litre of beer that would be payable under this Part if the purchase had been on the day before the annual adjustment date, and

“B” is the index factor calculated under subsection (2.1).

2010, c. 1, Sched. 1, s. 2 (1).

Index factor

(2.1)  For the purposes of subsection (2), the index factor is the greater of zero and the value calculated using the following formula, rounded to the nearest one-thousandth:

− 1

in which,

“C” is the Consumer Price Index for the 12-month period ending on the previous November 30,

“D” is the Consumer Price Index for the 12-month period preceding the 12-month period referred to in the definition of “C”,

“E” is the Consumer Price Index for the 12-month period preceding the 12-month period referred to in the definition of “D”, and

“F” is the Consumer Price Index for the 12-month period preceding the 12-month period referred to in the definition of “E”.

2010, c. 1, Sched. 1, s. 2 (1); 2010, c. 26, Sched. 1, s. 6.

Same

(3)  If the basic tax rate for the period ending immediately before an annual adjustment date was determined under this section and was rounded to the nearest one-hundredth of a cent under subsection (4), the amount of basic tax per litre referred to in the definition of “A” in subsection (2) is the amount that would have been determined under this section without rounding. 2009, c. 34, Sched. A, s. 7.

Rounding

(4)  If the tax rate expressed in cents per litre that is determined under subsection (2) has three or more decimal places, it is to be rounded to the nearest one-hundredth of a cent or, if the amount is equidistant between two consecutive hundredths of a cent, to the higher hundredth of a cent. 2009, c. 34, Sched. A, s. 7.

Consumer Price Index

(5)  In this section, the Consumer Price Index for a 12-month period is the result arrived at by,

(a) determining the sum of the Consumer Price Index for Ontario (All Items) as published by Statistics Canada under the authority of the Statistics Act (Canada) for each month in that period;

(b) dividing the sum obtained under clause (a) by 12; and

(c) rounding the result obtained under clause (b) to the nearest one-tenth. 2009, c. 34, Sched. A, s. 7; 2010, c. 1, Sched. 1, s. 2 (2, 3).

wine and wine coolers

Basic tax

Ontario wine or Ontario wine cooler

27.  (1)  A purchaser who purchases from a winery retail store wine that is Ontario wine or a wine cooler that is an Ontario wine cooler shall pay a basic tax in respect of the purchase at the basic tax rate of 6.1 per cent of the retail price of the wine or wine cooler. 2009, c. 34, Sched. A, s. 7.

Other wine or wine cooler

(2)  A purchaser who purchases from a winery retail store wine that is not Ontario wine or a wine cooler that is not an Ontario wine cooler shall pay a basic tax in respect of the purchase at the basic tax rate of 16.1 per cent of the retail price of the wine or wine cooler. 2009, c. 34, Sched. A, s. 7.

Retail price of wine, etc.

(3)  The retail price of wine or a wine cooler sold at a winery retail store to a purchaser is the amount fixed by the Board for the wine or wine cooler under the authority of clause 3 (1) (i) of the Liquor Control Act, or by the winery retail store if the Board has not fixed a price, less the sum of,

(a) all taxes imposed under this Act in respect of the purchase of the wine or wine cooler;

(b) all taxes imposed under Part IX of the Excise Tax Act (Canada) in respect of the purchase of the wine or wine cooler; and

(c) the amount of any deposit on the container containing the wine or wine cooler that is required to be collected or remitted under the Ontario deposit return program referred to in the regulations made under the Liquor Control Act. 2009, c. 34, Sched. A, s. 7; 2010, c. 1, Sched. 1, s. 3.

Samples

(4)  If a winery sells a sample of wine or a wine cooler to a purchaser and the amount of tax paid by the purchaser under this Part in respect of the sample is less than the amount of tax, based on the retail price of the wine or wine cooler, that is reasonably allocable by volume to the sample, the winery, as a purchaser, shall pay tax under this Act in an amount equal to the difference. 2009, c. 34, Sched. A, s. 7.

Volume tax

28.  A purchaser who purchases wine or a wine cooler from a winery retail store shall pay a volume tax in respect of the purchase at the volume tax rate of,

(a) 29 cents per litre, in the case of wine; or

(b) 28 cents per litre, in the case of a wine cooler. 2009, c. 34, Sched. A, s. 7.

Environmental tax

29.  A purchaser who purchases wine or a wine cooler from a winery retail store shall pay an environmental tax of 8.93 cents for each non-refillable container in which the wine or wine cooler is purchased. 2009, c. 34, Sched. A, s. 7.

Division C — Tax Collection and Remittance

beer

Tax collection and remittance

Collection by beer vendor

30.  (1)  Every beer vendor that, on or after July 1, 2010, sells or delivers beer to a purchaser in Ontario shall, as agent of the Minister, collect at the time of the sale or delivery all taxes imposed under this Part on a purchaser in respect of the purchase of the beer. 2009, c. 34, Sched. A, s. 7; 2010, c. 26, Sched. 1, s. 7 (1).

Remittance by beer vendor

(2)  Every beer vendor that, on or after the day referred to in subsection (1), purchases or receives delivery of beer from Brewers Retail Inc. or an authorized beer manufacturer shall pay to Brewers Retail Inc. or the authorized beer manufacturer an amount on account of all taxes imposed under this Part on a purchaser in respect of the purchase of the beer. 2009, c. 34, Sched. A, s. 7.

Collection by Brewers Retail Inc.

(3)  Brewers Retail Inc. shall, on the sale or delivery of beer to a licensee or agency store in Ontario on or after the day referred to in subsection (1), collect from the licensee or agency store at the time of the sale or delivery, as agent of the Minister, an amount on account of all taxes imposed under this Part on a purchaser in respect of the purchase of the beer. 2009, c. 34, Sched. A, s. 7.

Remittance by Brewers Retail Inc.

(4)  Brewers Retail Inc. shall pay amounts collected under subsection (3) to the authorized manufacturers from whom it purchased beer, allocating the amounts collected among the authorized manufacturers based on its purchases of beer from each of them. 2009, c. 34, Sched. A, s. 7.

Collection by authorized beer manufacturer

(5)  Every authorized beer manufacturer that, on or after July 1, 2010, sells or delivers beer in Ontario to any of the following persons or entities shall, as agent of the Minister, collect from the person or entity at the time of the sale or delivery an amount on account of all taxes imposed under this Part on a purchaser in respect of the purchase of the beer:

1. Brewers Retail Inc.

2. An agency store.

3. A licensee.

4. A store owned and operated by the authorized beer manufacturer under the Liquor Control Act. 2010, c. 26, Sched. 1, s. 7 (2).

Remittance by authorized beer manufacturer

(6)  Every authorized beer manufacturer that collects amounts on account of taxes as required under this section shall remit all amounts collected to the Minister in accordance with the regulations. 2009, c. 34, Sched. A, s. 7.

Remittance by operator of secondary location

(7)  The operator of every place that is a secondary location related to a brew pub shall pay to the licensee of the brew pub, in accordance with the regulations and at the time of purchasing or receiving delivery of draft beer made at the brew pub, an amount on account of all taxes imposed under Division B on a purchaser in respect of the purchase of the draft beer. 2009, c. 34, Sched. A, s. 7.

Collection by licensee of brew pub

(8)  Every licensee of a brew pub shall, on the sale or delivery of draft beer made at the brew pub to the operator of a place that is a secondary location related to the brew pub, collect at the time of the sale or delivery, as agent of the Minister, from the operator of the secondary location an amount on account of all taxes imposed under Division B on a purchaser in respect of the purchase of the draft beer. 2009, c. 34, Sched. A, s. 7.

Remittance by licensee of brew pub

(9)  Every licensee of a brew pub shall remit to the Minister in accordance with the regulations all taxes collected under subsection (1) at the brew pub from purchasers of draft beer made at the brew pub and all amounts collected as required under subsection (8). 2009, c. 34, Sched. A, s. 7.

Collection and remittance after change in tax rate, beer vendor

(10)  This subsection applies if a beer vendor receives beer before an increase date and then sells or delivers the beer to a purchaser on or after the increase date:

1. Despite subsection (1), the taxes to be collected by the beer vendor in respect of the beer shall be determined as if the beer were sold or delivered to the purchaser immediately before the increase date.

2. Despite subsection (2), the taxes to be paid by the beer vendor to Brewers Retail Inc. or to an authorized beer manufacturer in respect of the beer shall be determined as if the beer were to be sold or delivered to a purchaser immediately before the increase date.

3. Despite subsection (3), the amount to be collected by Brewers Retail Inc. from a licensee or agency store on account of taxes imposed under this Part on a purchaser in respect of the beer shall be determined as if the taxes were being imposed on the purchaser immediately before the increase date. 2010, c. 26, Sched. 1, s. 7 (3).

Same, authorized beer manufacturer

(11)  This subsection applies if beer is available for sale before an increase date at a store owned and operated by an authorized beer manufacturer under the Liquor Control Act and then the beer is sold or delivered to a purchaser on or after the increase date:

1. Despite subsection (1), the taxes to be collected by the authorized beer manufacturer in respect of the beer shall be determined as if the beer were sold or delivered to the purchaser immediately before the increase date. 2010, c. 26, Sched. 1, s. 7 (3).

Same, licensee of brew pub

(12)  This subsection applies if draft beer is made at a brew pub before an increase date and then the licensee of the brew pub sells or delivers the draft beer to a purchaser on or after the increase date or sells or delivers the draft beer on or after the increase date to an operator of a place that is a secondary location related to the brew pub:

1. Despite subsection (1), the taxes to be collected by the licensee of the brew pub in respect of the draft beer sold or delivered to a purchaser shall be determined as if the draft beer were sold to the purchaser immediately before the increase date.

2. Despite subsection (8), the amount to be collected by the licensee of the brew pub from the operator of the secondary location on account of taxes imposed on a purchaser in respect of the purchase of the draft beer shall be determined as if the draft beer were sold immediately before the increase date. 2010, c. 26, Sched. 1, s. 7 (3).

Same, operator of secondary location

(13)  This subsection applies if draft beer is made at a brew pub before an increase date and then an operator of a place that is a secondary location related to the brew pub sells or delivers the draft beer to a purchaser on or after the increase date:

1. Despite subsection (1), the taxes to be collected by the operator of the secondary location in respect of the draft beer shall be determined as if the draft beer were sold or delivered to the purchaser immediately before the increase date. 2010, c. 26, Sched. 1, s. 7 (3).

Right to sit as member of Assembly

30.1  No person acting as an agent of the Minister under this Division shall be, by reason only of their acting as an agent of the Minister, ineligible as a member of the Assembly. 2010, c. 1, Sched. 1, s. 4.

wine and wine coolers

Method of tax collection, wine and wine coolers

31.  (1)  Every winery that, on or after July 1, 2010, sells or delivers wine or a wine cooler to a purchaser at a winery retail store shall, as agent of the Minister, collect at the time of the sale or delivery all taxes imposed under Division B on a purchaser in respect of the purchase of the wine or wine cooler. 2009, c. 34, Sched. A, s. 7; 2010, c. 1, Sched. 1, s. 5 (1); 2010, c. 26, Sched. 1, s. 8.

Tax remittance

(2)  Every winery that collects taxes as required under subsection (1) shall remit the taxes to the Minister in accordance with the regulations. 2009, c. 34, Sched. A, s. 7; 2010, c. 1, Sched. 1, s. 5 (2).

Tax remittance through affiliate

(3)  Despite subsection (2), a winery that is a corporation may remit the taxes to a corporation that is an affiliate of the winery, and the affiliate shall collect the taxes, as agent for the Minister, and shall remit the taxes to the Minister in accordance with the regulations. 2009, c. 34, Sched. A, s. 7.

payments in lieu of tax

Amounts in lieu of tax

31.1  The following rules apply if a person sells beer, wine or a wine cooler and receives any payment made as or in lieu of the tax payable under this Act:

1. The person must deal with and account for the payment as tax under this Act.

2. If the person fails to deal with and account for the payment in accordance with this Act and the regulations, the person 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.

3. The Minister may collect and receive the payment using the same remedies and procedures that are provided by this Act and the regulations for the collection and enforcement of the tax payable under this Act.

4. For the purposes of the assessment and collection of the payment, the person receiving the payment is deemed to be a collector for the purposes of Division D. 2010, c. 26, Sched. 1, s. 9.

Division D — Administration

Definition

32.  In this Division,

“collector” means a beer vendor, a winery or, if it remits taxes to the Minister, an affiliate of a winery. 2009, c. 34, Sched. A, s. 7.

Tax held in trust

Definitions

33.  (1)  In this section,

“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 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”) 2009, c. 34, Sched. A, s. 7.

Deemed trust

(2)  Every amount collected or collectable by a collector under Division C as or on account of tax payable under this Part is deemed, despite any security interest in the amount collected or collectable, to be held in trust for the Crown in right of Ontario and is deemed to be held separate and apart from the property of the collector and from property held by any secured creditor that but for the security interest would be the property of the collector, and shall be paid over by the collector in accordance with Division C and the regulations. 2009, c. 34, Sched. A, s. 7.

Extension of trust

(3)  Despite any provision of this or any other Act, if at any time an amount deemed by subsection (2) to be held in trust is not paid as required under Division C or the regulations by the collector, property of the collector and property held by any secured creditor that but for a security interest would be property of the collector, equal in value to the amount deemed to be held in trust is deemed,

(a) to be held, from the time the amount was collected or became collectable by the collector, separate and apart from the property of the collector, in trust for the Crown 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 from the time the amount was collected or became collectable, whether or not the property has in fact been kept separate and apart from the estate or property of the collector and whether or not the property is subject to a security interest. 2009, c. 34, Sched. A, s. 7.

Same

(4)  The property described in subsection (2) is deemed to be beneficially owned by the Crown in right of Ontario despite any security interest in the property or in the proceeds of the property, and the proceeds of the property shall be paid to the Minister in priority to all security interests in the property. 2009, c. 34, Sched. A, s. 7.

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 a collector shall, before distributing the property or the proceeds from the realization of the property under that person’s control, obtain from the Minister a certificate that the amount deemed by subsection (2) to be held in trust, including any interest and penalties payable by the collector, has been paid or that security acceptable to the Minister has been given. 2009, c. 34, Sched. A, s. 7.

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 of the property without having obtained the certificate required by that subsection is personally liable to the Crown in right of Ontario for an amount equal to the amount deemed by subsection (2) to be held in trust, including any interest and penalties payable under this Part by the collector. 2009, c. 34, Sched. A, s. 7.

Notice to be given

(7)  The person described in subsection (5) shall, within 30 days after the day on which the person assumed possession or control of the property, give written notice of the assumption of possession or control of the property to the Minister. 2009, c. 34, Sched. A, s. 7.

Minister to advise of indebtedness

(8)  As soon as practicable after receiving a notice given under subsection (7), the Minister shall notify the person described in subsection (5) of the amount deemed by subsection (2) to be held in trust, including any interest and penalties related to that amount. 2009, c. 34, Sched. A, s. 7.

Assessment re amounts held in trust

(9)  The Minister may assess the amount that a person is liable for under subsection (6), and the assessed amount is deemed to be tax collectable or collected, as the case may be, by the person. 2009, c. 34, Sched. A, s. 7.

Application

(10)  This section applies in respect of any amount as or on account of tax collected or collectable by a collector under Division C whether the security interest was acquired before or after this section comes into force. 2009, c. 34, Sched. A, s. 7.

Security

34.  (1)  The Minister may require a collector to deposit with the Minister security in a form and of a kind acceptable to the Minister. 2009, c. 34, Sched. A, s. 7.

Minister may apply security

(2)  If a collector that has deposited security with the Minister under subsection (1) fails to collect or remit an amount as or on account of tax as required under this Part,

(a) the Minister may apply the security in whole or in part to the amount that should have been collected or remitted; and

(b) if the Minister takes the action described in clause (a), the Minister shall forthwith give written notice of the action to the collector by registered mail or personal service. 2009, c. 34, Sched. A, s. 7.

Assignment of book debts

35.  If a collector makes an assignment of its book debts, whether by way of specific or general assignment, or in any other manner disposes of its present or future right to collect its book debts, the assignment does not include the portion of the book debts that the collector, as agent for the Minister, charged the person to whom the collector sold the beer, wine or wine cooler as or on account of tax, and any such assignee or any other person who collects the book debts is deemed to be a collector under this Division and shall collect, remit and account under this Part and the regulations for the unassigned portion. 2009, c. 34, Sched. A, s. 7.

Requirement to submit returns

36.  (1)  Every collector required under Division C to collect tax or an amount on account of tax shall, if required to do so by the regulations, deliver a return to the Minister in accordance with the regulations. 2009, c. 34, Sched. A, s. 7.

Extended time for submitting returns

(2)  The Minister may enlarge the time for submitting a return before or after the time prescribed by the regulations for submitting it. 2009, c. 34, Sched. A, s. 7.

Records and books of account

37.  (1)  Every collector shall keep records and books of account in accordance with the rules prescribed by the regulations. 2009, c. 34, Sched. A, s. 7.

Location of records and books of account

(2)  Records and books of account required to be kept under subsection (1) must be kept,

(a) at the collector’s place of business or residence in Ontario; or

(b) at a place in Ontario or elsewhere approved in writing by the Minister, under any terms and conditions the Minister may impose. 2009, c. 34, Sched. A, s. 7.

Requirement by Minister to keep records

(3)  If, in the opinion of the Minister, a collector fails to keep adequate records and books of account for the purposes of this Part, the Minister may, by notice in writing, require the collector to keep, and the collector shall keep, such records and books of account as are specified in the notice. 2009, c. 34, Sched. A, s. 7.

Records retention period

(4)  Every collector shall retain all records and books of account, and every account and voucher necessary to verify the information contained in the records and books of account, until such time as all terms or conditions as may be prescribed by the regulations have been satisfied. 2009, c. 34, Sched. A, s. 7.

Audit and examination

38.  (1)  A person authorized by the Minister for any purpose related to the administration or enforcement of this Part may at all reasonable times enter any premises or place where a collector carries on business or keeps records or books of account, including electronic records, and may,

(a) audit or examine the records and books of account and any account, voucher, letter, telegram or other document that relates to or may relate to the tax imposed by this Part or any return required under this Part;

(b) examine the property described by an inventory or any property, process or matter, an examination of which may, in his or her opinion, assist in determining the accuracy of an inventory or in ascertaining the information that is or should be in the books or the amount of any tax imposed by this Part;

(c) require a collector or his, her or its employees or agents to give all reasonable assistance with the audit or examination and to answer all proper questions relating to the audit or examination either orally or, if so required in writing, on oath or by statutory declaration and for that purpose may require the person to attend at the premises or place. 2009, c. 34, Sched. A, s. 7.

Obstruction

(2)  No person shall obstruct or interfere with a person authorized by the Minister under subsection (1) in the exercise of his or her powers under this section. 2009, c. 34, Sched. A, s. 7.

Inventory report

(3)  The Minister may, at any time for a purpose related to the administration or enforcement of this Part or the regulations, require a collector to complete an inventory report in a form acceptable to the Minister showing all draft beer, non-draft beer, wine and wine coolers in the possession of the collector, and the collector shall complete and provide the inventory report to the Minister within such time as the Minister directs. 2009, c. 34, Sched. A, s. 7.

Class of collectors

(4)  The Minister may require a class of collectors to complete an inventory report in accordance with subsection (3). 2010, c. 26, Sched. 1, s. 10.

Demand for information

39.  (1)  For the purpose of obtaining any information that the Minister considers necessary for the purposes of this Part, the Minister may demand from any person such information as is indicated in a letter delivered personally or sent by registered mail to the person, and the person shall furnish to the Minister all such information in the person’s personal possession or under the person’s control, in writing, within such reasonable period of time after the delivery or sending of the letter as is specified in the letter. 2009, c. 34, Sched. A, s. 7.

Deemed receipt of registered mail

(2)  A letter sent to a person by registered mail under subsection (1) is deemed to have been received on the fifth day after the day of mailing unless the person establishes that, although acting in good faith, the person did not receive it or did not receive it until a later date. 2011, c. 9, Sched. 2, s. 4.

Assessment of tax collected

40.  (1)  The Minister may, at any time, assess or reassess an amount collected by a collector under this Part,

(a) if the collector has failed to submit a return in accordance with this Part or the regulations;

(b) if the collector has failed to remit an amount collected under this Part in accordance with this Part or the regulations; or

(c) if a return submitted by the collector under this Part is not substantiated by the collector’s records. 2009, c. 34, Sched. A, s. 7.

Deemed to have been collected

(2)  An amount assessed or reassessed by the Minister under subsection (1) is deemed to be the amount collected by the co-llector and required to be remitted to the Minister by the collector. 2009, c. 34, Sched. A, s. 7.

Minister not bound by returns

(3)  The Minister is not bound by any return submitted by a collector or by any information furnished by or on behalf of a collector and may, whether or not a return has been submitted, make an assessment at any time of the amount required to be collected on account of tax or paid as tax by the collector. 2009, c. 34, Sched. A, s. 7.

Continuing liability

(4)  A collector remains liable to remit all amounts collected under this Part even if the Minister has not made an assessment or has made an incorrect or incomplete assessment. 2009, c. 34, Sched. A, s. 7.

Penalty for non-collection

41.  (1)  The Minister may assess a penalty against a collector that fails to collect an amount required to be collected under this Part. 2009, c. 34, Sched. A, s. 7.

Amount of penalty

(2)  The amount of the penalty that may be assessed against a collector under subsection (1) is determined as follows:

1. If the Minister reasonably believes that the collector’s failure to collect the amount is attributable to neglect, carelessness, wilful default or fraud, the penalty is the sum of,

i. the amount that the collector failed to collect, and

ii. the greater of $100 and 25 per cent of the amount the collector failed to collect.

2. If paragraph 1 does not apply, the penalty is equal to the amount that the collector failed to collect. 2009, c. 34, Sched. A, s. 7.

Penalty, failure to submit a return

(3)  The Minister may assess a penalty against a collector that fails to submit a return in accordance with this Part and the regulations equal to 10 per cent of the tax collectable or 5 per cent of the tax payable by the collector, as the case may be, for the period covered by the return. 2010, c. 26, Sched. 1, s. 11.

(4)  Repealed: 2010, c. 26, Sched. 1, s. 11.

Penalty, failure to remit tax with return

(5)  The Minister may assess a penalty against a collector who fails to remit, with a return made under this Part or the regulations, the tax collectable or payable by the collector equal to 10 per cent of the tax collectable or 5 per cent of the tax payable by the collector, as the case may be, for the period covered by the return. 2009, c. 34, Sched. A, s. 7.

If collector subsequently collects

(6)  If the collector subsequently collects the amount the collector was required to collect during a period and in respect of which the collector paid a penalty under subsection (1), the collector may retain the collected amount. 2009, c. 34, Sched. A, s. 7.

Penalty, failure to deposit security

(7)  The Minister may assess a penalty against a collector who fails to deposit security as required under section 34. 2010, c. 1, Sched. 1, s. 6.

Amount of penalty

(8)  The amount of a penalty assessed under subsection (7) shall not exceed the amount of the security that the collector was required to deposit. 2010, c. 1, Sched. 1, s. 6.

Security obligation satisfied

(9)  If the Minister assesses a penalty under subsection (7), the Minister may accept the payment of the penalty in satisfaction of the collector’s obligations under section 34. 2010, c. 1, Sched. 1, s. 6.

If security provided subsequently

(10)  The Minister may return all or part of the penalty if the collector subsequently provides security acceptable to the Minister under section 34, or if the Minister determines that a lesser amount is sufficient to satisfy the collector’s obligations under section 34. 2010, c. 1, Sched. 1, s. 6.

Assessing purchasers and collectors

42.  (1)  Subject to subsections (2) to (5), the Minister may assess or reassess,

(a) tax payable by a purchaser, within four years after the day on which the tax becomes payable;

(b) a penalty under subsection 41 (1) for failing to collect an amount under this Part, within four years after the day the amount was required to be collected; and

(c) a penalty under subsection 41 (3) for failing to submit a return within four years after the day on which the return was required to be submitted. 2009, c. 34, Sched. A, s. 7.

No time limit if neglect, carelessness, etc.

(2)  Despite subsection (1), if the Minister establishes that a collector has made a misrepresentation that is attributable to neglect, carelessness or wilful default or has committed any fraud in making a return, in supplying information under this Part or in omitting to disclose information under this Part, subsection (1) does not apply, and the Minister may assess or reassess the amount required to be remitted or the tax, interest or penalty for which the collector is liable at any time the Minister considers reasonable. 2009, c. 34, Sched. A, s. 7.

Exception, waiver of limitation

(3)  The Minister may assess or reassess a purchaser or collector at any time if the purchaser or collector has filed with the Minister a waiver in a form approved by the Minister before the expiry of the applicable time limit set out in subsection (1). 2009, c. 34, Sched. A, s. 7.

Revocation of waiver

(4)  If a person files a waiver under subsection (3), the person may file a notice of revocation of the waiver in a form approved by the Minister. 2009, c. 34, Sched. A, s. 7.

Effect of revocation

(5)  If a person files a notice of revocation of the waiver under subsection (4), the Minister shall not issue an assessment or reassessment in reliance on the waiver more than one year after the day on which the notice of revocation is filed. 2009, c. 34, Sched. A, s. 7.

Requirement to pay penalties

43.  Every collector against whom the Minister assesses a penalty under this Part shall pay the penalty when assessed for it. 2009, c. 34, Sched. A, s. 7.

Interest

44.  (1)  If on a particular day a debt as calculated under subsection (2) is payable by a person, the person shall pay interest in accordance with the regulations on the amount of the debt from that day to the day the amount is received by the Minister. 2009, c. 34, Sched. A, s. 7.

Amount of debt calculation

(2)  In this section, the amount of the debt payable by a person under this Part at a particular day is the amount by which “A” exceeds “B” where,

“A” is the sum of,

(a) all amounts of or on account of tax under this Part that were payable or collectable by the person before that day,

(b) all penalties assessed under this Part against the person at any time before that day,

(c) all refunds taken under this Part that are disallowed in respect of a period of time ending before that day, and

(d) all interest payable by the person under this section before that day, and

“B” is the sum of,

(a) all amounts of or on account of tax that were paid or remitted by the person under this Part before that day and the amount of any refund owing under any other Act that was applied by the Minister to the person’s liabilities under this Part before that day,

(b) the amount of all refunds taken under this Part before that day, and

(c) all interest credited to the person before that day. 2009, c. 34, Sched. A, s. 7.

Compounding

(3)  The interest under subsection (1) is compounded daily to the day on which it is paid. 2009, c. 34, Sched. A, s. 7.

Minimum liability

(4)  If the amount of interest payable by a person under this section is less than a minimum amount to be determined from time to time by the Minister, no interest is payable by the person under this section. 2009, c. 34, Sched. A, s. 7.

Interest on penalties

(5)  For the purposes of this section, interest on a penalty assessed under this Part is calculated from the first day the default occurred to which the penalty applies, not from the day the penalty is assessed. 2009, c. 34, Sched. A, s. 7.

Exemption from payment of interest

(6)  If, owing to special circumstances, it is considered inequitable to demand from a person all or part of the interest otherwise payable, the Minister may exempt the person from payment of all or part of the interest. 2009, c. 34, Sched. A, s. 7.

Notice of assessment

45.  (1)  When the Minister assesses or reassesses an amount as or on account of tax or interest or a penalty under this Part, the Minister shall serve by prepaid mail or by personal service a notice of assessment on the person assessed and that person shall remit or pay to the Minister all amounts assessed and not previously remitted or paid by the person, together with any interest payable under this Part, whether or not an objection or appeal is outstanding. 2009, c. 34, Sched. A, s. 7.

Assessment valid and binding

(2)  Any assessment or reassessment made under this Part, subject to being varied or vacated on an objection or appeal and subject to a reassessment, is deemed to be valid and binding despite any error, defect or omission in it or in any proceeding under this Part relating to it. 2009, c. 34, Sched. A, s. 7.

Overpayments

46.  (1)  If a collector remits or pays to the Minister more money for a period than was required to be remitted or paid under this Part, the Minister shall,

(a) subject to subsection (2), refund the overpayment to the collector; or

(b) at the option of the Minister, apply the overpayment to the collector’s liability with respect to another period and notify the collector of that action. 2009, c. 34, Sched. A, s. 7.

Limitation

(2)  The Minister shall not make a refund under subsection (1),

(a) unless an application for the refund is made to the Minister within four years after the day the remittance or payment was made in respect of which the collector is seeking a refund; and

(b) unless evidence satisfactory to the Minister is provided to establish the entitlement of the collector to the refund. 2009, c. 34, Sched. A, s. 7.

Saving

(3)  If the result of an assessment or reassessment or the final decision of a court in a proceeding commenced under section 56 is that a collector has made an overpayment under this Part, the Minister shall,

(a) refund the overpayment to the collector without requiring the collector to comply with subsection (2); or

(b) at the option of the Minister, apply the overpayment to the collector’s liability with respect to another period and notify the collector of that action. 2009, c. 34, Sched. A, s. 7.

Interest on overpayments

(4)  Interest at the rate or rates determined under the regulations, computed and compounded daily, shall be paid or applied to the amount refunded or applied to another liability from the day that is 30 days after application is made for repayment to the day the overpayment is refunded or applied, but only if the amount is not less than a minimum amount to be determined from time to time by the Minister. 2009, c. 34, Sched. A, s. 7.

Same

(5)  If it is finally determined by a decision of the Minister under section 55 or by a decision of the court that an amount to be remitted or paid under this Part by a collector is less than the amount assessed or reassessed to which objection was made or from which an appeal was taken, the interest payable or to be allowed under subsection (4) shall be determined in accordance with the regulations made for the purposes of this subsection. 2009, c. 34, Sched. A, s. 7; 2010, c. 1, Sched. 1, s. 7.

Application to other liabilities

(6)  If a collector is about to become liable to remit or pay an amount under this Part or is liable or about to become liable to remit or make a payment under another Act administered by the Minister that imposes a tax or is prescribed by the regulations, the Minister may apply the amount of an overpayment made by the collector to that liability and shall notify the collector if the Minister takes that action. 2009, c. 34, Sched. A, s. 7.

Refund to beer vendor, sale on reserve

47.  (1)  A beer vendor who sells beer to a person who is exempt from the payment of tax imposed by this Part may apply to the Minister through the authorized manufacturer that manufactured the beer for a refund of the amount paid by the beer vendor on account of taxes under this Part in respect of the beer. 2009, c. 34, Sched. A, s. 7.

Same

(2)  If the Minister considers it appropriate to do so, the Minister may require a beer vendor referred to in subsection (1) to apply directly to the Minister for refunds described in that subsection and, upon notification by the Minister to the beer vendor and the authorized manufacturer, no further refunds shall be made through the authorized manufacturer. 2009, c. 34, Sched. A, s. 7.

Statement of disallowance

47.1  (1)  If, upon considering an application for a refund made under this Part, the Minister determines that the applicant is not entitled to all or part of the refund, the Minister shall serve a statement of disallowance on the applicant. 2010, c. 1, Sched. 1, s. 8.

Content of statement

(2)  A statement of disallowance shall set out the amount of the refund that is being disallowed and the reasons for the disallowance. 2010, c. 1, Sched. 1, s. 8.

Assessment re excess refund

48.  (1)  The Minister may assess a person who has received a refund under this Part to which the person is not entitled or in excess of the amount to which the person is entitled. 2009, c. 34, Sched. A, s. 7.

Amount of assessment for refund

(2)  An assessment under subsection (1) shall be for the amount to which the person was not entitled and for interest at the rate or rates determined under the regulations from the day of payment of the refund. 2009, c. 34, Sched. A, s. 7.

Explanation

(3)  An assessment under subsection (2) shall be accompanied by a brief written explanation of why the person is not entitled to the amount specified in the assessment. 2009, c. 34, Sched. A, s. 7.

Deemed to be tax owing

(4)  The amount specified in the assessment is deemed to be tax owing to the Crown in right of Ontario, and the sections of this Part relating to notices of assessment, objections, appeals and the collection of amounts owing under this Part apply with necessary modifications to the amount. 2009, c. 34, Sched. A, s. 7.

Penalty, misrepresentation in application for refund

49.  The Minister may deny all or part of the amount of a refund claimed by a person or entity under this Part, and may assess a penalty against the person or entity in an amount not more than the amount denied, if the person or entity or another person on their behalf misrepresented a material fact on or in connection with the application for the refund or in a document referred to in or delivered in support of the application. 2009, c. 34, Sched. A, s. 7.

Recovery of amounts payable under this Part

50.  (1)  On default of payment of an amount assessed under this Part,

(a) the Minister may bring an action for the recovery of the amount in any court in which a debt or money demand of a similar amount may be collected, 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; and

(b) the Minister may issue a warrant directed to the sheriff for an area in which any property of a person or entity liable to make a payment or remittance under this Part is located or situate for the amount owing by the person or entity, for interest on that amount from the day of the issue of the warrant and for the costs and expenses of the sheriff, and the warrant has the same force and effect as a writ of execution issued out of the Superior Court of Justice. 2009, c. 34, Sched. A, s. 7.

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). 2010, c. 26, Sched. 1, s. 12.

Security

(2)  If the Minister considers it advisable to do so, the Minister may accept security for the payment of any amount payable under this Part in any form the Minister considers appropriate. 2009, c. 34, Sched. A, s. 7.

Compliance to be proved by affidavit

(3)  For the purpose of any proceeding taken under this Part, the facts necessary to establish compliance on the part of the Minister with this Part as well as the failure of any person or entity to comply with the requirements of this Part shall, unless evidence to the contrary satisfactory to the court is adduced, be sufficiently proved in any court of law by affidavit of the Minister or an employee in the Ministry of Revenue who has knowledge of the facts. 2009, c. 34, Sched. A, s. 7.

Remedies for recovery of tax

(4)  The use of any of the remedies provided under this Part does not bar or affect any of the other remedies under this Part, and the remedies provided by this Part for the recovery and enforcement of the payment of any amount payable or required to be remitted under this Part are in addition to any other remedies existing by law, and no action or other proceeding taken in any way prejudices, limits or affects any lien, charge or priority existing under this Part or at law in favour of the Crown in right of Ontario. 2009, c. 34, Sched. A, s. 7.

Same

(5)  Neither the prosecution of a person for an offence under this Part nor the assessment and enforcement of any penalty under this Part suspends or affects any remedy for the recovery of any amount payable or required to be remitted under this Part. 2009, c. 34, Sched. A, s. 7.

Recovery of costs

50.1  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 50 (1) (a) for the recovery of an amount owing under this Act.

4. Issuance and execution of a warrant referred to in clause 50 (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. 2, s. 5.

Lien on real property

51.  (1)  Any amount payable or required to be remitted under this Part by a person or entity 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 person or entity liable to pay or remit the amount has in the real property described in the notice. 2009, c. 34, Sched. A, s. 7.

Lien on personal property

(2)  Any amount payable or required to be remitted under this Part by any person or entity 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 person or entity liable to pay or remit the amount. 2009, c. 34, Sched. A, s. 7.

Amounts included and priority

(3)  The lien and charge conferred by subsection (1) or (2) is in respect of all amounts the person or entity is required to pay or remit under this Part at the time of registration of the notice or any renewal of it and all amounts that the person or entity is required to pay or remit afterwards 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 property of the person or entity after the notice is registered. 2009, c. 34, Sched. A, s. 7.

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 is 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. 2009, c. 34, Sched. A, s. 7.

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 day the renewal notice is registered. 2009, c. 34, Sched. A, s. 7.

Same

(6)  If any amount required to be paid or remitted has not been paid or remitted as required under this Part 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 day 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). 2009, c. 34, Sched. A, s. 7.

If person or entity is not the registered owner

(7)  If a person or entity 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 person or entity 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. 2009, c. 34, Sched. A, s. 7.

Secured party

(8)  In addition to any other rights and remedies, if any amount owed by the person or entity remains 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. 2009, c. 34, Sched. A, s. 7.

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. 2009, c. 34, Sched. A, s. 7.

Errors in documents

(10)  A notice of lien and charge or any renewal of it 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. 2009, c. 34, Sched. A, s. 7.

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. 2009, c. 34, Sched. A, s. 7.

Effect of deemed trust

(12)  The registration of a notice of lien and charge under this section does not affect the operation of section 33 and applies to secure any liability of a person or entity in addition to any deemed trust under that section. 2009, c. 34, Sched. A, s. 7.

Definitions

(13)  In this section, a reference to real property includes a reference to fixtures attached to the real property and an interest in real property includes a leasehold interest in real property. 2009, c. 34, Sched. A, s. 7.

Garnishment

52.  (1)  If the Minister has knowledge or suspects that a person or entity (a “third party”) is, or within 365 days will become, indebted or liable to make a payment to a person or entity (a “debtor”) required to pay or remit an amount under this Part, 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 debtor in whole or in part during the 365 days after the third party receives the letter. 2009, c. 34, Sched. A, s. 7.

Minister’s receipt discharges original liability

(2)  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. 2009, c. 34, Sched. A, s. 7.

Same

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

(a) to a person or entity whose property is subject to a deemed trust created by section 33; or

(b) to 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 or entity 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 or entity referred to in clause (a) all or part of the money that would otherwise be paid, and the payment shall become the property of the Crown in right of Ontario despite any security interest in it and shall be paid to the Minister in priority to the security interest. 2009, c. 34, Sched. A, s. 7.

Liability of debtor

(4)  Every person or entity who has discharged any liability to a person or entity required to pay or remit an amount under this Part without complying with the requirements of this section is liable to pay to the Minister an amount equal to the liability discharged or the amount that the person or entity was required under this section to pay to the Minister, whichever is the lesser amount. 2009, c. 34, Sched. A, s. 7.

Service of garnishee

(5)  If a person or entity (a “third party”) who is, or within 365 days will become, indebted or liable to make a payment to a person or entity required to pay or remit an amount under this Part 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 is deemed to be validly served if it is left with an adult employed at the place of business of the addressee. 2009, c. 34, Sched. A, s. 7.

Same

(6)  If persons (“partners”) who are, or within 365 days will become, indebted or liable to pay an amount to a person or entity required to pay or remit an amount under this Part 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 is deemed to be validly served if it is served on a partner or left with an adult employed at the place of business of the partnership. 2009, c. 34, Sched. A, s. 7.

Limitation

(7)  Subsections (1) to (6) are subject to the Wages Act. 2009, c. 34, Sched. A, s. 7.

Application to court

(8)  The Minister may apply to the Superior Court of Justice for an order, and the court may make the order, requiring any person or entity to comply with a requirement under this section to pay money that the person or entity has failed, without reasonable excuse, to pay to the Minister. 2009, c. 34, Sched. A, s. 7.

Assessment, non-arm’s length transfers

53.  (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”) 2009, c. 34, Sched. A, s. 7.

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 or entity with whom the transferor is not dealing at arm’s length, the transferor and transferee are jointly and severally liable to pay under this Part the amount determined under subsection (4). 2009, c. 34, Sched. A, s. 7.

Same

(3)  For the purpose of subsection (2), persons are deemed not to deal with each other at arm’s length if they are deemed not to deal with each other at arm’s length for the purposes of the Income Tax Act (Canada). 2009, c. 34, Sched. A, s. 7.

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 sum of all amounts, each of which is,

(a) any amount payable by the transferor under this Part at or before the time of the transfer that has not been paid,

(b) any amount collected or collectable by the transferor that has not been remitted as required under this Part, or

(c) any penalty or interest for which the transferor is liable under this Part at the time of the transfer. 2009, c. 34, Sched. A, s. 7.

Same

(5)  Nothing in subsection (2) or (4) limits the liability of the transferor or transferee under any other provision of this Part. 2009, c. 34, Sched. A, s. 7.

Assessment

(6)  The Minister may assess a transferee at any time in respect of any amount payable by reason of this section, and the provisions of this Part relating to notices of assessment, objections, appeals and the collection of amounts owing under this Part apply with necessary modifications. 2009, c. 34, Sched. A, s. 7.

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 Part discharges the transferee’s liability under this section to the extent that the payment reduces the balance of the transferor’s liability under this Part to an amount less than the amount of the transferee’s liability under this section. 2009, c. 34, Sched. A, s. 7.

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. 2009, c. 34, Sched. A, s. 7.

Liability of corporate directors

54.  (1)  If a corporation failed to collect an amount required to be collected under this Part or collected the amount but failed to remit it to the Minister or has failed to pay any interest or penalty related to the failure to collect or remit an amount in accordance with this Part and the regulations, the directors of the corporation at the time the corporation was required to collect or remit the amount or to pay the interest or penalty are jointly and severally liable, with the corporation, to pay those amounts. 2009, c. 34, Sched. A, s. 7.

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 section 50 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);

(b) 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

(c) the corporation becomes subject to a proceeding to which section 33 applies and a claim is made by the Minister during the period beginning on the day on which the Minister should have been advised of the commencement of those proceedings and ending on the day that is six months after the remaining property of the collector has been finally disposed of. 2009, c. 34, Sched. A, s. 7; 2011, c. 9, Sched. 2, s. 6.

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. 2009, c. 34, Sched. A, s. 7.

Assessment

(4)  The Minister may assess a person for an amount payable by the person under this section and, if the Minister sends a notice of assessment, the provisions of this Part relating to notices of assessment, objections, appeals and the collection of amounts owing under this Part apply with necessary modifications. 2009, c. 34, Sched. A, s. 7.

Time limit

(5)  The Minister shall not issue a notice of assessment to a person for an amount assessed under subsection (4) more than two years after the person last ceased to be a director of the corporation. 2009, c. 34, Sched. A, s. 7.

Execution

(6)  If the warrant of execution referred to in clause (2) (a) has been issued, the amount recoverable from a director is the amount remaining unsatisfied after execution. 2009, c. 34, Sched. A, s. 7.

Same

(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 the Crown in right of Ontario would be entitled to had the amount not been paid and, if the warrant of execution has been issued under section 50, the director is entitled to the assignment of the warrant of execution to the extent of the director’s payment, and the Minister is authorized to make the assignment. 2009, c. 34, Sched. A, s. 7.

Allocation by the Minister

(8)  For the purposes of this section, the Minister may, at his or her discretion, determine how the payment or payments made by or on behalf of the corporation under this Part are to be applied with respect to amounts the corporation is liable to pay or remit under this Part. 2009, c. 34, Sched. A, s. 7.

Fees under s. 8.1 of the Financial Administration Act

54.1  (1)  A fee that the Minister of Finance requires a person to pay under section 8.1 of the Financial Administration Act for failing to make full and unconditional payment or settlement of an amount payable under this Part,

(a) is deemed to be tax assessed and payable under this Part; and

(b) may be collected and enforced as tax under this Part. 2010, c. 1, Sched. 1, s. 9.

Notice

(2)  Subsection (1) applies only if the Minister of Finance gives written notice of the fee to the person who is required to pay it. 2010, c. 1, Sched. 1, s. 9.

No objection or appeal

(3)  A person who receives notice of a fee under subsection (2) is not entitled to object to the fee or appeal the fee under section 55 or 56. 2010, c. 1, Sched. 1, s. 9.

objections and appeals

Notice of objection

55.  (1)  A person who objects to an assessment made against the person under this Part may, within 180 days after the day of mailing of the notice of assessment, serve on the Minister a notice of objection in the form approved by the Minister. 2009, c. 34, Sched. A, s. 7.

Facts and reasons to be given

(2)  The notice of objection must,

(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. 2009, c. 34, Sched. A, s. 7.

Same

(3)  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 is deemed to have complied with clause (2) (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. 2009, c. 34, Sched. A, s. 7.

Limitation

(4)  A person shall not raise, by way of objection under this section to a reassessment or to a variation of an assessment under subsection (7), any issue that the person is not entitled to raise by way of appeal under section 56 in respect of the reassessment or a variation of the assessment. 2009, c. 34, Sched. A, s. 7.

Service

(5)  A notice of objection under this section must be served by being sent by registered mail addressed to the Minister or by such other method of service as the Minister prescribes. 2009, c. 34, Sched. A, s. 7.

Computation of time

(6)  For the purpose of calculating the number of days mentioned in subsection (1) or (3) or 56 (1), the day on which a notice of assessment is mailed, a request is made under subsection (3) or a notification is given under subsection (7) is the day stated in the notice of assessment, request or notification. 2009, c. 34, Sched. A, s. 7.

Reconsideration

(7)  Upon receipt of the notice of objection, the Minister shall with all due dispatch reconsider the assessment objected to and vacate, confirm or vary the assessment or reassess, and the Minister shall notify the person making the objection of his or her action in writing. 2009, c. 34, Sched. A, s. 7.

Appeal

56.  (1)  When the Minister has given the notification required under subsection 55 (7), the person who served the notice of objection may appeal to the Superior Court of Justice to have the assessment vacated or varied, but no appeal under this section shall be instituted after the expiry of 90 days after the day the notification was mailed to the person under subsection 55 (7). 2009, c. 34, Sched. A, s. 7.

Appeal, how instituted

(2)  An appeal to the Superior Court of Justice is instituted by,

(a) filing with the court a notice of appeal 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. 2009, c. 34, Sched. A, s. 7.

Limitation

(3)  A person is entitled to raise by way of appeal only those issues raised by the person in the notice of objection to the assessment being appealed from and in respect of which the person has complied or is deemed to have complied with subsection 55 (2). 2009, c. 34, Sched. A, s. 7.

Exception

(4)  Despite subsection (3), a person may raise by way of appeal an issue forming the basis of a reassessment or a variation of an assessment if the issue was not part of the assessment with respect to which the person served the notice of objection. 2009, c. 34, Sched. A, s. 7.

Waived right of objection or appeal

(5)  Despite subsection (1), no person shall institute an appeal under this section to have an assessment 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. 2009, c. 34, Sched. A, s. 7.

Service

(6)  A notice of appeal must be served on the Minister by being sent by registered mail addressed to the Minister. 2009, c. 34, Sched. A, s. 7.

Statement of allegations

(7)  The person appealing shall set out in the notice of appeal a statement of the allegations of fact and the statutory provisions and reasons that the person intends to submit to support the appeal. 2009, c. 34, Sched. A, s. 7.

Reply to notice of appeal

(8)  The Minister shall with all due dispatch serve on the person appealing and file in 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 all statutory provisions and reasons that the Minister intends to rely on and, if the Minister fails to serve the reply within 180 days after the day of service on him or her of the notice of appeal,

(a) the appellant may, on 21 days notice to the Minister, bring a motion before a judge of the Superior Court of Justice for an order requiring the reply to be served within such time as the judge shall order;

(b) the judge may, if he or she considers it proper in the circumstances, also order that, upon failure by the Minister to serve the reply in the time specified in the order, the assessment with respect to which the appeal is taken shall be vacated and any amount paid pursuant to the assessment or any disallowed refund that is the subject of the appeal shall be repaid or refunded to the appellant. 2009, c. 34, Sched. A, s. 7.

Appeal procedure

(9)  On the filing of the material referred to in subsection (8) with the Superior Court of Justice, the matter is deemed to be an action in the court. 2009, c. 34, Sched. A, s. 7.

Facts not set out may be pleaded

(10)  Any fact or statutory provision not set out in the notice of appeal or reply may be pleaded or referred to in such manner and upon such terms as the court may direct. 2009, c. 34, Sched. A, s. 7.

Disposal of appeal

(11)  The court may dispose of the appeal by,

(a) dismissing it;

(b) allowing it; or

(c) allowing it and,

(i) vacating the assessment,

(ii) varying the assessment,

(iii) restoring the assessment, or

(iv) referring the assessment back to the Minister for reconsideration and reassessment. 2009, c. 34, Sched. A, s. 7.

Court may order payment or refund

(12)  The court may, in delivering judgment disposing of an appeal, order that a payment or refund be made by the appellant or the Minister, as the case may be, and may make such order as to costs as is considered proper. 2009, c. 34, Sched. A, s. 7.

Appeal proceedings closed to public

(13)  Proceedings under this section are to be closed to the public if requested by the appellant or the Minister. 2009, c. 34, Sched. A, s. 7.

Appeals, Superior Court of Justice practice to govern

(14)  The practice and procedure of the Superior Court of Justice, including the right of appeal and the practice and procedure relating to appeals, apply to every matter deemed to be an action under this section, 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. 2009, c. 34, Sched. A, s. 7.

Irregularities, etc., directory provisions

57.  An assessment shall not be vacated or varied on appeal 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 Part. 2009, c. 34, Sched. A, s. 7.

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

58.  (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 Part or the regulations, or

ii. this Part 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. 2009, c. 34, Sched. A, s. 7.

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) of the Rules of Civil Procedure. 2009, c. 34, Sched. A, s. 7.

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. 2009, c. 34, Sched. A, s. 7.

Effect of declaration of law

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

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

(b) otherwise affects the rights of the Minister or the applicant in any appeal instituted under this Part. 2009, c. 34, Sched. A, s. 7.

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 in respect of any matter arising under this Part. 2009, c. 34, Sched. A, s. 7.

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 Part or the regulations if any condition in subsection (1) has not been satisfied or the application is prohibited under subsection (5). 2009, c. 34, Sched. A, s. 7.

Extension of time to object or appeal

59.  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 the extension is made,

(a) in respect of a notice of objection,

(i) before the expiry of the time limit under subsection 55 (1), or

(ii) within one year from the day of mailing or delivery by personal service of the notice of assessment that is the subject of the objection if the person wishing to object furnishes to the Minister an explanation satisfactory to the Minister of why the notice of objection could not be served in accordance with subsection 55 (1); or

(b) with respect to an appeal, before the expiry of the time limit under subsection 56 (1). 2009, c. 34, Sched. A, s. 7.

Objection and appeal of refund disallowance

59.1  (1)  If an application for a refund is disallowed under section 47.1, the applicant may object to the disallowance by serving a notice of objection to the disallowance on the Minister within 180 days after the day of mailing of the statement of disallowance. 2010, c. 1, Sched. 1, s. 10.

Form

(2)  The notice of objection shall be in a form approved by the Minister. 2010, c. 1, Sched. 1, s. 10.

Application

(3)  Sections 55, 56, 57 and 59 apply with necessary modifications to an objection to a disallowance made under subsection (1). 2010, c. 1, Sched. 1, s. 10.

offences

Offences

Failure to submit return or remit tax

60.  (1)  Every collector that fails to submit a return or remit an amount on account of tax to the Minister in accordance with this Part and the regulations is guilty of an offence and, in addition to any penalty that may be assessed under this Part, is liable on conviction to a fine of,

(a) not less than $500; and

(b) not more than the sum of $10,000 plus twice the amount on account of tax collected or required to be collected during the period to which the return relates. 2009, c. 34, Sched. A, s. 7.

False statements, etc.

(2)  Every person is guilty of an offence who has,

(a) made, or participated in, assented to or acquiesced in the making of false or deceptive statements in a return, statement or answer, delivered or made as required under this Part or the regulations;

(b) to evade collection or remittance of a tax imposed by this Part, destroyed, altered, mutilated, secreted or otherwise disposed of records or books of account;

(c) made, assented to or acquiesced in the making of false or deceptive entries or omitted, or assented to or acquiesced in the omission to enter a material particular in records or books of account; or

(d) wilfully, in any manner, evaded or attempted to evade compliance with this Part. 2009, c. 34, Sched. A, s. 7.

Same, amount of fine, imprisonment, etc.

(3)  A person who is guilty of an offence under subsection (2) is liable on conviction, in addition to any penalty that may be assessed under this Part,

(a) to a fine of,

(i) not less than the greater of $500 and 25 per cent of the amount on account of tax collected or required to be collected during the period to which the return relates, and

(ii) not more than the sum of $10,000 plus twice the amount on account of tax collected or required to be collected during the period to which the return relates;

(b) to imprisonment for a term of not more than two years; or

(c) to both a fine under clause (a) and imprisonment under clause (b). 2009, c. 34, Sched. A, s. 7.

Failure to collect tax

(4)  Every collector that fails to collect an amount on account of tax as required under this Part is guilty of an offence and, in addition to any penalty that may be assessed under this Part, is liable on conviction to a fine equal to the sum of,

(a) the amount that should have been collected, as determined under subsection (5); and

(b) an amount not less than $500 and not more than the sum of $10,000 and twice the amount referred to in clause (a). 2009, c. 34, Sched. A, s. 7.

Determination of amount that should have been collected

(5)  The Minister shall determine the amount that should have been collected by a collector from such information as is available to the Minister and shall issue a certificate as to the amount, but, except where the Minister considers that there has been a deliberate evasion of this Part, the Minister shall not consider a period of more than four years in determining the amount that should have been collected. 2009, c. 34, Sched. A, s. 7.

Certificate of amount

(6)  In any prosecution under subsection (4), a certificate signed or purported to be signed by the Minister stating the amount that should have been collected by a collector is proof, in the absence of evidence to the contrary, of the amount the collector should have collected and of the authority of the person giving or making the certificate without any proof of appointment or signature. 2009, c. 34, Sched. A, s. 7.

Obtaining refund by deceit, falsehood, etc.

(7)  Every person who, by deceit, falsehood or any other fraudulent means, obtains or attempts to obtain a refund under this Part to which the person is not entitled is guilty of an offence and is liable on conviction,

(a) to,

(i) a fine of not less than $500 and not more than $10,000, and

(ii) an additional fine of not more than twice the amount of the refund the person obtained or sought to obtain;

(b) to imprisonment for a term of not more than two years; or

(c) to both the fines under clause (a) and imprisonment under clause (b). 2009, c. 34, Sched. A, s. 7.

Offence

(8)  Every person who contravenes or fails to comply with any of the following provisions is guilty of an offence and is liable on conviction to a fine of $50 multiplied by the number of days the person contravened the provision or failed to comply with the provision:

1. Section 37.

2. Clause 38 (1) (c).

3. Subsection 38 (2). 2009, c. 34, Sched. A, s. 7.

General offence

(9)  Every person who contravenes or fails to comply with any provision of this Part or the regulations is guilty of an offence and, if no other fine is provided under this Part on conviction of the offence, is liable on conviction to a fine, in addition to any penalty that may be assessed under this Part, of not less than $100 and not more than $5,000. 2009, c. 34, Sched. A, s. 7.

Same

(10)  Every individual who directed, authorized, assented to, acquiesced in or participated in the commission of any act or an omission which is an offence under this Part and for which a corporation, association or other entity would be liable to prosecution under this Part is guilty of an offence and on conviction is liable to the punishment provided for the offence, whether or not the corporation, association or other entity has been prosecuted or convicted. 2009, c. 34, Sched. A, s. 7.

Limitation

(11)  Proceedings shall not be commenced in respect of an offence under this Part more than six years after the day on which the offence was, or is alleged to have been, committed. 2009, c. 34, Sched. A, s. 7.

evidence

Admission of evidence

61.  (1)  The Minister, or a person authorized by the Minister, may, for any purpose relating to the administration or enforcement of this Part, reproduce from original data stored electronically any document previously issued by the Minister under this Part, and the electronically reproduced document is admissible in evidence and shall have the same probative force as the original would have had if it had been proved in the ordinary way. 2009, c. 34, Sched. A, s. 7.

Same

(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 the regulations, 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. 2009, c. 34, Sched. A, s. 7.

Same

(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 or of a person authorized by 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. 2009, c. 34, Sched. A, s. 7.

confidentiality

Confidentiality

62.  (1)  Except as authorized by this section, no person employed by the Government of Ontario, the Board or the Commission 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 purposes of this Part; or

(b) knowingly allow any person to inspect or to have access to any record or thing obtained by or on behalf of the Minister for the purposes of this Part. 2009, c. 34, Sched. A, s. 7.

Non-disclosure

(2)  Despite any other Act, but subject to subsection (3), no person employed by the Government of Ontario, the Board or the Commission 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 Part; or

(b) to produce any record or thing obtained by or on behalf of the Minister for the purposes of this Part. 2009, c. 34, Sched. A, s. 7.

Exceptions

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

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

(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 an amount under this Part. 2009, c. 34, Sched. A, s. 7.

Same

(4)  A person employed by the Government of Ontario, the Board or the Commission may, in the course of his or her duties in connection with the administration or enforcement of this Part,

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

(b) allow an official or authorized person employed by the Government of Ontario, the Board or the Commission 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 Part. 2009, c. 34, Sched. A, s. 7.

Copies

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

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

(b) any person,

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

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

(c) the legal representative of a person mentioned in clause (a) or (b); or

(d) an agent authorized in writing by a person mentioned in clause (a) or (b) to act as their agent. 2009, c. 34, Sched. A, s. 7.

Disclosure to other jurisdictions

(6)  Despite anything in this or any other Act, the Minister may permit information or a copy of any record or thing obtained by the Minister or on the Minister’s behalf for the purposes of this Part to be given to,

(a) a minister of the Government of Canada or any officer or employee employed under a minister of the Government of Canada for the purposes of administering or enforcing an Act of the Parliament of Canada imposing any tax or duty; or

(b) a minister of the government of any province or territory of Canada or officer or employee employed under that minister, for the purposes of administering or enforcing an Act or ordinance of the Legislature of that province or territory imposing any tax or duty,

if the minister of the Government of Canada or the minister of the government of the province or territory, as the case may be, is permitted to give to the Minister information or copies of any record or thing obtained by or on behalf of the minister of the Government of Canada, or the minister of the government of that province or territory, as the case may be, in the administration or enforcement of that Act for the purposes of the administration or enforcement of this Act. 2009, c. 34, Sched. A, s. 7.

Communication with the Commission

(7)  The Minister may disclose, or allow to be disclosed, information necessary for the administration and enforcement of the tax imposed by this Part to an official of the Commission or the Board. 2009, c. 34, Sched. A, s. 7.

Offence

(8)  Every person,

(a) who contravenes subsection (1); or

(b) to whom information has been provided under the authority of subsection (4), (5), (6) or (7) who uses, communicates or allows to be communicated such information for any purposes other than that for which it was provided,

is guilty of an offence and is liable on conviction to a fine of not more than $2,000. 2009, c. 34, Sched. A, s. 7.

the commission

Commission functions

63.  (1)  If requested to do so by the Minister, the Commission shall act as an agent of the Crown to collect tax and other amounts payable under this Part. 2009, c. 34, Sched. A, s. 7.

Compensation

(2)  The Minister may reimburse the Commission for any costs the Commission incurs in carrying out its functions under this Part as agent of the Crown and such reimbursement shall be paid out of money appropriated for that purpose by the Legislature. 2009, c. 34, Sched. A, s. 7.

Commission may collect and use information

(3)  The Commission may, for the purposes of carrying out its functions under subsection (1), collect and use information,

(a) obtained in the course of carrying out its functions under this Part; or

(b) disclosed to it by the Minister. 2009, c. 34, Sched. A, s. 7.

Commission and Board may disclose information

(4)  The Commission and the Board may, for the purposes of the administration and enforcement of this Part, disclose to the Minister information obtained in the course of carrying out their functions under this Part. 2009, c. 34, Sched. A, s. 7.

Same

(5)  The Minister may collect and use information disclosed by either the Commission or the Board to the Minister for the purposes of administering and enforcing this Part. 2009, c. 34, Sched. A, s. 7.

Deemed collection

(6)  Despite any other Act, all information collected by the Minister from the Commission or the Board under this Part is deemed to be information collected directly by the Minister from the person or entity from whom the Commission or Board collected the information. 2009, c. 34, Sched. A, s. 7.

Commission resolutions revoked

64.  The following resolutions and portions of resolutions of the Commission are of no force or effect on and after July 1, 2010:

1. The resolution dated February 20, 1998 adopting clauses 14 (1) (a), (b) and (d) of Regulation 720 of the Revised Regulations of Ontario, 1990 (Manufacturers’ Licences) made under the Liquor Licence Act, as those clauses read before August 29, 2002, relating to the 2 per cent winery store fee for wine and wine coolers, the volume levy for wine and the environmental levy for wine and wine coolers.

2. Sections 2, 3 and 4 of the resolution dated April 30, 2003, as amended, relating to the basic fee on duty free sales and a volume levy and environmental levy for beer.

3. The resolution entitled “Revised Fee Brew Pub Endorsement” dated June 4, 2004.

4. The resolution entitled “Revised Beer Fees” dated June 4, 2004, relating to the basic fee for beer manufacturers and microbreweries.

5. The resolution entitled “Revised Fee for Manufacturers of Wine Coolers” dated June 4, 2004, relating to the volume levy for wine coolers. 2009, c. 34, Sched. A, s. 7; 2010, c. 26, Sched. 1, s. 13.

tax-included pricing

Tax-included pricing

65.  (1)  All beer sold by beer vendors to purchasers and all wine and wine coolers sold by wineries at winery retail stores to purchasers shall be made available for sale at a price that includes all taxes payable under this Part by a purchaser on the purchase of the beer, wine or wine cooler. 2009, c. 34, Sched. A, s. 7.

Obligation to make information on taxes available to purchaser

(2)  Beer vendors and wineries shall make available to purchasers such information with respect to the amount of taxes included in the price as the Minister specifies and shall make the information available by a method approved by the Minister. 2009, c. 34, Sched. A, s. 7.

Division E — Retroactive Tax

Application

66.  Sections 67 to 69,

(a) apply in respect of the purchase of beer, wine and wine coolers on and after January 1, 2007 and before July 1, 2010; and

(b) are retroactive to the extent necessary to give them effect on and after January 1, 2007. 2009, c. 34, Sched. A, s. 8; 2010, c. 26, Sched. 1, s. 14.

draft and non-draft beer

Tax, beer

Basic tax

67.  (1)  A purchaser who, on or after January 1, 2007 and before July 1, 2010, purchases beer in Ontario shall pay a basic tax in respect of the purchase at the rate of,

(a) 55.55 cents per litre if the beer is non-draft beer; or

(b) 40.55 cents per litre if the beer is draft beer. 2009, c. 34, Sched. A, s. 9; 2010, c. 26, Sched. 1, s. 15 (1).

Exception re draft beer manufactured at a brew pub

(2)  Despite subsection (1), if draft beer is manufactured at a brew pub by the holder of a licence with a brew pub endorsement and is purchased at the brew pub or at a secondary location related to the brew pub, the rate of basic tax in respect of the purchase is,

(a) 6.70 cents per litre if the draft beer was purchased at the brew pub; or

(b) 24.30 cents per litre if the draft beer was purchased at the secondary location. 2009, c. 34, Sched. A, s. 9.

Volume tax

(3)  A purchaser who, on or after January 1, 2007 and before July 1, 2010, purchases draft beer made by a beer manufacturer or non-draft beer shall pay a volume tax in respect of the purchase at the volume tax rate of 17.6 cents per litre of beer. 2009, c. 34, Sched. A, s. 9; 2010, c. 26, Sched. 1, s. 15 (2).

Environmental tax

(4)  A purchaser who, on or after January 1, 2007 and before July 1, 2010, purchases draft beer made by a beer manufacturer or non-draft beer shall pay an environmental tax of 8.93 cents for each non-refillable container in which the beer is purchased. 2009, c. 34, Sched. A, s. 9; 2010, c. 26, Sched. 1, s. 15 (3).

wine and wine coolers

Tax, wine and wine coolers

Basic tax

68.  (1)  A purchaser who, on or after January 1, 2007 and before July 1, 2010, purchases wine or a wine cooler at a winery retail store shall pay to the Crown in right of Ontario a basic tax in respect of the purchase of the wine or wine cooler at the basic tax rate of 2 per cent of the selling price of the wine or wine cooler. 2009, c. 34, Sched. A, s. 9; 2010, c. 26, Sched. 1, s. 16 (1).

Selling price

(2)  For the purposes of subsection (1), the selling price of wine or a wine cooler sold at a winery retail store to a purchaser is the amount fixed by the Board for the wine or wine cooler under the authority of clause 3 (1) (i) of the Liquor Control Act less the sum of,

(a) the volume tax imposed under subsection (3) and the environmental tax imposed under subsection (4);

(b) the amount of tax imposed under subsection 2 (2) of the Retail Sales Tax Act in respect of the purchase of the wine or wine cooler;

(c) all taxes imposed under Part IX of the Excise Tax Act (Canada) in respect of the purchase of the wine or wine cooler; and

(d) the amount of any deposit on the container containing the wine or wine cooler that is required to be collected or remitted under the Ontario deposit return program referred to in the regulations made under the Liquor Control Act. 2009, c. 34, Sched. A, s. 9.

Volume tax

(3)  A purchaser who, on or after January 1, 2007 and before July 1, 2010, purchases wine or a wine cooler at a winery retail store shall pay to the Crown in right of Ontario a volume tax in respect of the wine or wine cooler at the volume tax rate of,

(a) 29 cents per litre for wine; or

(b) 28 cents per litre for a wine cooler. 2009, c. 34, Sched. A, s. 9; 2010, c. 26, Sched. 1, s. 16 (2).

Environmental tax

(4)  A purchaser who, on or after January 1, 2007 and before July 1, 2010, purchases wine or a wine cooler in Ontario shall pay an environment tax of 8.93 cents for each non-refillable container in which the wine or wine cooler is purchased. 2009, c. 34, Sched. A, s. 9; 2010, c. 26, Sched. 1, s. 16 (3).

tax collection

Tax deemed to be paid

69.  (1)  Every purchaser who is subject to tax under this Part in respect of the purchase of beer, wine or a wine cooler on or after January 1, 2007 and before July 1, 2010 is deemed to pay the tax at the time he or she purchases the beer, wine or wine cooler. 2009, c. 34, Sched. A, s. 9; 2010, c. 26, Sched. 1, s. 17 (1).

Tax deemed to be collected

(2)  Every beer vendor, winery and affiliate of a winery who sells beer, wine or a wine cooler on or after January 1, 2007 and before July 1, 2010 in respect of which fees have been paid pursuant to a resolution or the portion of a resolution described in section 64,

(a) is deemed to collect the tax payable under this Division in respect of the beer, wine or wine cooler at the time the beer, wine or wine cooler is sold; and

(b) is deemed to remit the tax to the Commission as agent for the Minister at the time the fees are paid. 2009, c. 34, Sched. A, s. 9; 2010, c. 26, Sched. 1, s. 17 (2).

Same

(3)  All amounts deemed under subsection (2) to be collected and remitted are deemed to be collected and retained by the Minister as payment for and in respect of tax payable under this Division. 2009, c. 34, Sched. A, s. 9.

Division F — Forms and Regulations

Forms

70.  The Minister may approve the use of forms for any purpose of this Part and the forms may require the provision of such information as the Minister may require. 2009, c. 34, Sched. A, s. 10.

Regulations

Lieutenant Governor in Council

71.  (1)  The Lieutenant Governor in Council may make regulations defining terms or expressions used in this Part that are not defined in this Part. 2009, c. 34, Sched. A, s. 10.

Minister of Finance

(2)  The Minister of Finance may make regulations,

(a) prescribing anything referred to in this Part as prescribed by the regulations;

(b) prescribing rules relating to records and books of account to be maintained by collectors, including rules relating to their content and when they may be destroyed;

(c) prescribing rules for the payment of tax and for the collection and remittance of amounts on account of tax;

(d) prescribing rules relating to returns and the submission of returns by collectors;

(e) providing for the calculation and payment of interest on amounts paid in excess of amounts payable under this Part and prescribing the rate of interest or the manner of determining the rate of interest;

(f) providing for the refund of tax or amounts on account of tax, in whole or in part, owing to special circumstances and prescribing the terms and conditions under which the refund may be made;

(g) governing the procedures to be followed for a person or class of persons to obtain the benefit of an exemption from tax under subsection 17 (3) or to obtain a refund under this Part. 2009, c. 34, Sched. A, s. 10; 2010, c. 1, Sched. 1, s. 11.

Retroactive

(3)  A regulation made under this Part may come into force before the day it is filed and apply in respect of a period before the regulation is filed. 2009, c. 34, Sched. A, s. 10.

Division G — Transitional

Inventory report

72.  (1)  The Minister may require a beer vendor or a class of beer vendors to complete an inventory report showing the total amount of draft and non-draft beer in their possession immediately before July 1, 2010. 2009, c. 34, Sched. A, s. 10; 2010, c. 26, Sched. 1, s. 18 (1).

Tax remittance

(2)  The following rules apply if the Minister requires a beer vendor to comply with subsection (1):

1. The beer vendor is deemed to buy the beer in its inventory for resale immediately before July 1, 2010.

2. The beer vendor shall remit to the Minister, in the manner required by the Minister, the difference between the fees paid with respect to the beer pursuant to a resolution or portion of a resolution described in section 64 and the tax collectable by the beer vendor on the beer under Division C. 2009, c. 34, Sched. A, s. 10; 2010, c. 26, Sched. 1, s. 18 (2).

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