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Bill C-43

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Commissioner and Deputy Commissioner

Appointment and tenure of Commissioner

25. The Commissioner of Customs and Revenue must be appointed by the Governor in Council to hold office during pleasure for a term of not more than five years, which term may be renewed for one or more further terms of not more than five years each.

Appointment and tenure of Deputy Commissioner

26. (1) A Deputy Commissioner of Customs and Revenue may be appointed by the Governor in Council to hold office during pleasure for a term of not more than five years, which term may be renewed for one or more further terms of not more than five years each.

Duties of Deputy Commissioner

(2) The Deputy Commissioner must exercise the powers and perform the duties and functions that the Commissioner assigns.

When Deputy acts for Commissioner

(3) The Deputy Commissioner must act as Commissioner if the Commissioner is absent or incapacitated or the office of Commissioner is vacant and, for that purpose, has all the powers, duties and functions of the Commissioner.

Incapacity or vacancy

27. In the event of the absence or incapacity of, or vacancy in the office of, the Commissioner and the Deputy Commissioner, the Minister may appoint an employee of the Agency to exercise the powers and perform the duties and functions of the Commissioner, but no employee may be so appointed for a term of more than sixty days without the approval of the Governor in Council.

Full-time office

28. (1) The Commissioner and Deputy Commissioner must carry out the duties and functions of their office on a full-time basis.

Remunera-
tion

(2) The Agency must pay the Commissioner and Deputy Commissioner remuneration at the rate fixed by the Governor in Council.

Expenses

29. The Commissioner and the Deputy Commissioner are entitled to be paid reasonable travel and living expenses incurred by them in the course of performing their duties while absent from their ordinary place of work.

GENERAL AUTHORITY OF THE AGENCY

Matters over which Agency has authority

30. (1) The Agency has authority over all matters relating to

    (a) general administrative policy in the Agency;

    (b) the organization of the Agency;

    (c) Agency real property as defined in section 73; and

    (d) personnel management, including the determination of the terms and conditions of employment of persons employed by the Agency.

Treasury Board regulations

(2) Notwithstanding the Financial Administration Act, the Agency is not subject to any regulation or requirement established by the Treasury Board under that Act that relates to any matter referred to in subsection (1), except in so far as any part of the regulation or requirement relates to financial management.

MANAGEMENT AND DIRECTION OF THE AGENCY

Responsibilities of the Board

Role of the Board

31. (1) The Board is responsible for overseeing the organization and administration of the Agency and the management of its resources, services, property, personnel and contracts.

Corporate business plan

(2) The Board is responsible for the development of the corporate business plan referred to in section 47.

By-laws

32. (1) The Board may make by-laws to carry out its responsibilities under this Act and for the conduct of its affairs.

Copy to Minister

(2) The Board must, after making, amending or repealing a by-law, send a copy of that by-law to the Minister.

Advisory role

33. The Board may advise the Minister on matters that relate to the general administration and enforcement of the program legislation.

Limitation

34. The Board may not direct the Commissioner or any other person

    (a) in the exercise of a power or the performance of a duty or function conferred or delegated under the program legislation or the laws of a province or authorized to be exercised or performed on the Minister's behalf under this Act; or

    (b) on the administration and enforcement of the program legislation.

Board's access to information

35. Nothing in this Act authorizes the disclosure to the Board of information

    (a) that directly or indirectly reveals the identity of the person, organization or business to which it relates; and

    (b) that is obtained under the program legislation or the laws of a province or that is prepared from information so obtained.

Responsibilities of the Commissioner

Role of Commissioner

36. The Commissioner is the chief executive officer of the Agency and is responsible for the day-to-day management and direction of the Agency.

Authoriza-
tion by Commissioner

37. (1) The Commissioner may authorize any person, subject to any terms and conditions that the Commissioner may specify, to exercise or perform on behalf of the Commissioner any power, duty or function of the Commissioner under this Act.

Limitation

(2) Subsection (1) does not include a ministerial power, duty or function conferred on the Commissioner under subsection 8(1) or the Commissioner's power under subsection 8(4) or this section.

Commissioner to keep Minister informed

38. (1) The Commissioner must keep the Minister informed of any matter that could affect public policy or that could materially affect public finances, and any other matter that the Minister considers necessary.

Support to Minister

(2) The Commissioner must assist and advise the Minister in the exercise of the Minister's powers and in the performance of the Minister's duties and functions under any Act of Parliament or of a province and in the carrying out of the Minister's duties as a minister of the Crown.

Commissioner to keep departments informed

39. (1) Subject to any confidentiality provisions in the program legislation or in the Privacy Act, the Commissioner must provide a federal department or agency on whose behalf the Agency administers a program or carries out an activity with the information necessary to evaluate the program or activity and formulate policies related to it.

Consultation with departments

(2) The Commissioner must consult with any federal department or agency on whose behalf the Agency administers a program or carries out an activity on matters that could have a significant impact on the program or activity.

Commissioner to keep provinces informed

40. (1) Subject to any confidentiality provisions in the program legislation or in the Privacy Act, the Commissioner must provide the government of a province on whose behalf the Agency administers a tax or program or carries out an activity with the information necessary to evaluate the tax, program or activity and formulate policies related to it.

Consultation with provinces

(2) The Commissioner must consult with the government of a province on whose behalf the Agency administers a tax or program or carries out an activity on matters that could have a significant impact on the tax, program or activity.

Reporting to provincial ministers

41. (1) The Commissioner must annually report on the Agency's administration of any tax or program or its carrying out of any activity on behalf of a province to the responsible provincial minister or to any other minister that the province designates.

Annual meeting with provincial ministers

(2) The Commissioner must offer to meet annually with the provincial minister referred to in subsection (1) to consider the minister's views and recommendations related to the Agency's administration of any tax or program or carrying out of any activity on behalf of the province.

Duties and Indemnification of Directors

Duty of care

42. (1) Every director of the Agency, in exercising their powers and performing their duties and functions, must

    (a) act honestly and in good faith, with a view to the best interests of the Agency having regard to its mandate; and

    (b) exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.

Reliance on statements

(2) A director is not liable for a breach of duty under subsection (1) if the director relies in good faith on

    (a) the financial statements of the Agency represented in a written report by the Auditor General or an employee of the Agency who is authorized to issue such a report as fairly reflecting the Agency's financial condition; or

    (b) a report of an accountant, lawyer, notary or other professional person whose profession lends credibility to a statement made by them.

Actions of other persons

(3) A director is not liable for a breach of duty under subsection (1) by reason only of an act or omission of another person in respect of a matter referred to in section 34 on which the Board may not direct.

Best interests

(4) Compliance with a direction issued by the Minister under subsection 11(1) is deemed to be in the best interests of the Agency.

Disclosure of interest in contract

43. (1) A director of the Agency must disclose any interest in a material contract or proposed material contract with the Agency by writing to the Agency or by requesting to have entered in the minutes of a meeting of the Board the nature and extent of the interest, if the director

    (a) is a party to a material contract or proposed material contract with the Agency; or

    (b) is a director or officer of, or has a material interest in, any person who is a party to a material contract or proposed material contract with the Agency.

Disclosure by director where contract comes before Board

(2) The disclosure required by subsection (1) must be made

    (a) at the meeting of the Board at which the proposed contract is first considered;

    (b) if the director was not then interested in the proposed contract, at the first meeting of the Board after the director becomes interested;

    (c) if the director becomes interested after the contract is made, at the first meeting of the Board after the director becomes interested; or

    (d) if the director was interested in the contract before becoming a director, at the first meeting of the Board after becoming a director.

Disclosure by director of other contracts

(3) If a material contract or proposed material contract is one that in the ordinary course of the business or activity of the Agency would not require approval by the Board, a director must disclose in writing to the Agency or request to have entered in the minutes of a meeting of the Board the nature and extent of the director's interest as soon as the director becomes aware of the contract or proposed contract.

Voting on contract

(4) A director referred to in subsection (1) may not vote on any resolution to approve the contract.

Continuing disclosure

(5) For the purposes of this section, a general notice to the Board by a director, declaring that they are a director or officer of or have a material interest in a person and are to be regarded as interested in any contract made with that person, is a sufficient declaration of interest in relation to any contract so made.

Avoidance standards

44. A material contract between the Agency and one or more of its directors or between the Agency and another person of which a director of the Agency is a director or an officer or in which the director has a material interest, is neither void nor voidable by reason only of that relationship or by reason only that a director with an interest in the contract is present at or is counted to determine the presence of a quorum at a meeting of the Board that authorized the contract, if

    (a) the director disclosed the interest in accordance with subsection 43(2), (3) or (5); and

    (b) the contract was approved by the Board and it was reasonable and fair to the Agency at the time it was approved.

Application to court

45. (1) If a director of the Agency fails to disclose their interest in a material contract in accordance with section 43, a court may, on application of the Agency or on behalf of the Crown, set aside the contract on any terms that it thinks fit.

Definition of ``court''

(2) In this section, ``court'' has the same meaning as in subsection 118(2) of the Financial Administration Act.

Power to indemnify

46. (1) The Agency may indemnify a present or former director of the Agency and the director's heirs and legal representatives against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, that are reasonably incurred by the director in respect of any civil, criminal or administrative action or proceeding to which the director is a party by reason of being or having been a director, if the director

    (a) acted honestly and in good faith, with a view to the best interests of the Agency having regard to its mandate; and

    (b) in the case of any criminal or administrative action or proceeding that is enforced by a monetary penalty, believed on reasonable grounds that the director's conduct was lawful.

Payable out of C.R.F.

(2) An amount that is payable in respect of indemnification under this section may be paid out of the Consolidated Revenue Fund.

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