Energy Safety and Security Act (S.C. 2015, c. 4)
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Assented to 2015-02-26
PART 1MODERNIZING CANADA’S OFFSHORE OIL AND GAS OPERATIONS REGIME
Coordinating Amendments
Marginal note:Bill C-15
118. (1) Subsections (2) to (10) apply if Bill C-15, introduced in the 2nd session of the 41st Parliament and entitled the Northwest Territories Devolution Act (in this section referred to as “the other Act”), receives royal assent.
(2) On the first day on which both section 21 of the other Act and subsection 17(1) of this Act are in force, the portion of subsection 25.1(1) of the Canada Oil and Gas Operations Act before paragraph (a) is replaced by the following:
Marginal note:Spill-treating agents
25.1 (1) In the case of a spill in the zones referred to in paragraph 3(d) or the waters superjacent to the continental shelf of Canada, the provisions referred to in Schedule 1 do not apply to the deposit of a spill-treating agent and those referred to in Schedule 2 do not apply in respect of any harm that is caused by the spill-treating agent or by the interaction between the spill-treating agent and the spilled oil, if
(3) On the first day on which both section 21 of the other Act and subsection 25.4(1) of the Canada Oil and Gas Operations Act, as enacted by section 18 of this Act, are in force, subsection 25.4(1) is replaced by the following:
Marginal note:Scientific research
25.4 (1) For the purpose of a particular research project pertaining to the use of a spill-treating agent in mitigating the environmental impacts of a spill, the Minister of the Environment may authorize, and establish conditions for, the deposit of a spill-treating agent, oil or oil surrogate in the zones referred to in paragraph 3(d) or the waters superjacent to the continental shelf of Canada.
(4) On the first day on which both section 21 of the other Act and subsection 19(2) of this Act are in force, paragraphs 26(2.2)(b) and (c) of the Canada Oil and Gas Operations Act are replaced by the following:
(b) in respect of any area referred to in paragraphs 3(a) and (b) that is covered by or located at a distance of 200 metres or less from any river, stream, lake or other body of inland water and to which paragraph (a) of this subsection does not apply, the amount of $25 million;
(c) in respect of any area referred to in paragraphs 3(a) and (b) and to which neither paragraph (a) nor (b) of this subsection applies, the amount of $10 million; and
(5) On the first day on which both section 21 of the other Act and subsection 21(1) of this Act are in force, paragraph 27(1)(a) of the Canada Oil and Gas Operations Act is replaced by the following:
(a) in the case of the drilling for or development or production of oil or gas in any area referred to in paragraphs 3(d) and (e), in the amount of $100 million or, if the Board considers it necessary, in a greater amount that it determines; or
(6) On the first day on which section 24 of the other Act and subsection 23(1) of this Act are in force, the definition “unitization order” in section 29 of the Canada Oil and Gas Operations Act is replaced by the following:
“unitization order”
« arrêté d’union »
“unitization order” means an order made under section 41, 48.092 or 48.23;
(7) On the first day on which section 21 of the other Act and subsection 23(2) of this Act are in force, paragraphs (a) and (b) of the definition “perimeter” in section 29 of the Canada Oil and Gas Operations Act are replaced by the following:
(a) the area in the offshore, as defined in section 48.01, that is within 20 km of the onshore;
(b) the area in Nunavut that is within 20 km of the limit of that territory; and
(c) the portion of the submarine area — consisting of the areas referred to in paragraphs 3(d) and (e) — that is within 10 nautical miles of the seaward limit of that area;
(8) If section 36 of the other Act comes into force before subsection 34(4) of this Act, then that subsection 34(4) is repealed.
(9) If subsection 34(4) of this Act comes into force before section 36 of the other Act, then that section 36 is repealed.
(10) If section 36 of the other Act comes into force on the same day as subsection 34(4) of this Act, then that section 36 is deemed to have come into force before that subsection 34(4) and subsection (8) applies as a consequence.
Coming into Force
Marginal note:Order or 12 months after royal assent
119. (1) Subject to subsection (2), the provisions of this Part, other than sections 117 and 118, come into force 12 months after the day on which this Act receives royal assent or on any earlier day or days that may be fixed by order of the Governor in Council.
Marginal note:Order or 5 years after royal assent
(2) Subsections 8(2), 17(2) to (4), 52(2), 58(2) to (4), 88(2) and 94(2) to (4) come into force five years after the day on which this Act receives royal assent or on any earlier day or days that may be fixed by order of the Governor in Council.
PART 2NUCLEAR LIABILITY AND COMPENSATION ACT
Enactment of Act
Marginal note:Enactment
120. The Nuclear Liability and Compensation Act, whose text is as follows and whose schedule is set out in Schedule 4 to this Act, is enacted:
An Act respecting civil liability and compensation for damage in case of a nuclear incident, repealing the Nuclear Liability Act and making consequential amendments to other Acts
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the Nuclear Liability and Compensation Act.
INTERPRETATION
Marginal note:Definitions
2. The following definitions apply in this Act.
“approved insurer”
« assureur agréé »
“approved insurer” means an insurer or association of insurers that is designated under section 29 as an approved insurer.
“Contracting State”
« État contractant »
“Contracting State” means a State that has ratified, accepted or approved the Convention in accordance with its Article XVIII or that has acceded to it in accordance with its Article XIX.
“Convention”
« Convention »
“Convention” means the Convention on Supplementary Compensation for Nuclear Damage, done at Vienna on September 12, 1997 and signed by Canada on December 3, 2013, as amended from time to time.
“Installation State”
« État où se trouve l’installation »
“Installation State” means a Contracting State within whose territory is situated a nuclear installation as defined in Article 1.I(b) of the Annex to the Convention or, if the nuclear installation is not within the territory of a Contracting State, the Contracting State by which or under whose authority the nuclear installation is operated.
“nuclear fuel”
« combustible nucléaire »
“nuclear fuel” means material that is capable of a self-sustaining nuclear fission chain reaction.
“nuclear incident”
« accident nucléaire »
“nuclear incident” means an occurrence or a series of occurrences having the same origin that causes damage for which an operator is liable under this Act.
“nuclear installation”
« établissement nucléaire »
“nuclear installation” means, other than in the definition “Installation State” and subparagraphs 9(1)(b.1)(i) and (b.2)(i) and 9(4)(b)(i) and (c)(i) of the English version, any site or means of transport that is designated under section 7 as a nuclear installation.
“nuclear material”
« matière nucléaire »
“nuclear material” means
(a) nuclear fuel, other than natural uranium or depleted uranium, that can produce energy by a self-sustaining nuclear fission chain reaction outside a nuclear reactor, either alone or in combination with another material; and
(b) radioactive products or waste, other than radioisotopes that have reached the final stage of fabrication so as to be usable for any scientific, medical, agricultural, commercial or industrial purpose.
“nuclear reactor”
« réacteur nucléaire »
“nuclear reactor” means a structure containing nuclear fuel arranged such that a self-sustaining nuclear fission chain reaction can occur in the structure without an additional source of neutrons.
“operator”
« exploitant »
“operator” means a person who is designated by a regulation made under section 7 as an operator.
“public funds”
« fonds publics »
“public funds” means an amount that Contracting States must contribute when a call for funds is made under Article VII.1 of the Convention.
“radioactive products or waste”
« produit ou déchet radioactif »
“radioactive products or waste” means
(a) radioactive material that is produced in the production or use of nuclear fuel other than natural uranium or depleted uranium; or
(b) material that is made radioactive by exposure to radiation consequential on or incidental to the production or use of nuclear fuel other than natural uranium or depleted uranium.
“Tribunal”
« Tribunal »
“Tribunal” means a nuclear claims tribunal established under subsection 41(1).
PURPOSE OF ACT
Marginal note:Civil liability and compensation
3. The purpose of this Act is to govern civil liability and compensation for damage in case of a nuclear incident.
DESIGNATION OF MINISTER
Marginal note:Minister
4. The Governor in Council may, by order, designate a minister of the Crown to be the Minister referred to in this Act.
NON-APPLICATION
Marginal note:Non-application — war, etc.
5. (1) This Act does not apply to a nuclear incident that results from an act of war, hostilities, civil war or insurrection, other than a terrorist activity as defined in subsection 83.01(1) of the Criminal Code.
Marginal note:Non-application — damage to nuclear installation
(2) This Act does not apply to damage to the nuclear installation of an operator who is responsible for that damage or to any property at the installation that is used in connection with the installation, including property under construction.
HER MAJESTY
Marginal note:Binding on Her Majesty
6. This Act is binding on Her Majesty in right of Canada or a province.
DESIGNATION OF NUCLEAR INSTALLATIONS AND OPERATORS
Marginal note:Designation of nuclear installations
7. (1) The Governor in Council may, on the Minister’s recommendation and after consultation with the Canadian Nuclear Safety Commission, designate by regulation any site at which is located a facility or facilities that are authorized by a licence issued under the Nuclear Safety and Control Act and that contain nuclear material as a nuclear installation.
Marginal note:Description of site and designation of operator
(2) The regulation must describe the site, list the facilities on it that are authorized to contain nuclear material and designate the holder of a licence described in subsection (1) as the operator of the nuclear installation.
Marginal note:Coming into force
(3) The regulation may be made before a licence has been issued, but it must not come into force before the day on which the licence is issued.
Marginal note:Designation of means of transport
(4) The Governor in Council may, on the Minister’s recommendation and after consultation with the Canadian Nuclear Safety Commission, designate by regulation any means of transport that is equipped with a nuclear reactor as a nuclear installation and designate by regulation the holder of a licence issued under the Nuclear Safety and Control Act respecting that means of transport as the operator of the nuclear installation.
LIABILITY FOR NUCLEAR INCIDENTS
Operator’s Liability
Marginal note:Limitation
8. An operator is not liable for damage that is caused by a nuclear incident except for any liability that is provided for under this Act.
Marginal note:Liability — Canada
9. (1) An operator — and no person other than an operator — is liable for damage that is caused within Canada or its exclusive economic zone by
(a) ionizing radiation emitted from any source of radiation within, or released from, the operator’s nuclear installation;
(b) ionizing radiation emitted from nuclear material being transported
(i) from the operator’s nuclear installation until it is placed in another nuclear installation or until liability is assumed by the operator of that other nuclear installation, under the terms of a written contract,
(ii) to the operator’s nuclear installation from outside Canada,
(iii) from the operator’s nuclear installation to a person who is within the territory of a State that is not a Contracting State until it is unloaded from the means of transport by which it arrived in that State, or
(iv) with the operator’s written consent, from a person who is within the territory of a State that is not a Contracting State to the operator’s installation, from the time that it is loaded on the means of transport by which it is to be carried from that State;
(b.1) ionizing radiation emitted from nuclear material being transported from the operator’s nuclear installation
(i) before liability is assumed under the terms of a written contract, by a person who is within the territory of a Contracting State other than Canada and who is designated or recognized under the laws of that State as operating a nuclear installation as defined in Article 1.I(b) of the Annex to the Convention, or
(ii) in the absence of a contract, before that person takes charge of the nuclear material;
(b.2) ionizing radiation emitted from nuclear material being transported to the operator’s nuclear installation
(i) after liability is assumed by the operator under the terms of a written contract, from a person who is within the territory of a Contracting State other than Canada and who is designated or recognized under the laws of that State as operating a nuclear installation as defined in Article 1.I(b) of the Annex to the Convention, or
(ii) in the absence of a contract, after the operator takes charge of the nuclear material; or
(c) a combination of the radioactive properties and toxic, explosive or other hazardous properties of a source referred to in paragraph (a) or nuclear material referred to in paragraph (b), (b.1) or (b.2).
Marginal note:Preventive measure — liability in Canada
(2) An operatorand no person other than an operator — is liable for damage that is caused within Canada or its exclusive economic zone if the damage is caused by a preventive measure that is taken under subsection — 20(1) in relation to that operator’s nuclear installation or in relation to any transportation for which the operator is responsible.
Marginal note:Liability — damage in reciprocating country
(3) If provided for in regulations made under subsection 70(2) to implement an agreement between Canada and a reciprocating country, an operator — and no person other than an operator — is liable for damage that occurs in the reciprocating country or its exclusive economic zone and that results from the production, processing, transport, storage, use or disposition of the nuclear material for which the operator is responsible.
Marginal note:Additional liability — Contracting State other than Canada
(4) An operator — and no person other than an operator — is liable for damage that is caused within a Contracting State other than Canada or within that State’s exclusive economic zone by
(a) ionizing radiation emitted from any source of radiation within, or released from, the operator’s nuclear installation;
(b) ionizing radiation emitted from nuclear material being transported from the operator’s nuclear installation
(i) before liability is assumed, under the terms of a written contract, by a person who is within the territory of the Contracting State other than Canada and who is designated or recognized under the laws of that State as operating a nuclear installation as defined in Article 1.I(b) of the Annex to the Convention, or
(ii) in the absence of a contract, before that person takes charge of the nuclear material;
(c) ionizing radiation emitted from nuclear material being transported to the operator’s nuclear installation
(i) after liability is assumed by the operator, under the terms of a written contract, from a person who is within the territory of the Contracting State other than Canada and who is designated or recognized under the laws of that State as operating a nuclear installation as defined in Article 1.I(b) of the Annex to the Convention, or
(ii) in the absence of a contract, after the operator takes charge of the nuclear material; or
(d) a combination of the radioactive properties and toxic, explosive or other hazardous properties of a source referred to in paragraph (a) or nuclear material referred to in paragraph (b) or (c).
Marginal note:Preventive measure — liability in Contracting State other than Canada
(5) An operator — and no person other than an operator — is liable for any damage that is caused within a Contracting State other than Canada or within that State’s exclusive economic zone if the damage is caused by a preventive measure that is taken under subsection 21(1) in relation to that operator’s nuclear installation or in relation to any transportation for which the operator is responsible.
Marginal note:Additional liability — transportation to or from non-contracting State
(6) An operator — and no person other than an operator — is liable for damage that is caused within a Contracting State other than Canada or within that State’s exclusive economic zone by
(a) ionizing radiation emitted from nuclear material being transported
(i) from the operator’s nuclear installation to a person who is within the territory of a State that is not a Contracting State until it is unloaded from the means of transport by which it arrived in that State; or
(ii) with the operator’s written consent, from a person who is within the territory of a State that is not a Contracting State to the operator’s nuclear installation, from the time it is loaded on the means of transport by which it is to be carried from that State; or
(b) a combination of the radioactive properties and toxic, explosive or other hazardous properties of nuclear material referred to in paragraph (a).
Marginal note:Absolute liability
10. (1) The liability of an operator for damage that is caused by a nuclear incident is absolute.
Marginal note:Tort or fault
(2) For the purposes of subsection (1), no proof of tort or of fault within the meaning of the Civil Code of Québec is required.
Marginal note:Liability — jointly and severally, or solidarily
11. If liability under this Act is incurred by two or more operators, each is jointly and severally, or solidarily, liable to the extent that it cannot reasonably be determined what portion of the liability is attributable to each operator.
Marginal note:Person responsible for nuclear incident
12. An operator is not liable for damage that is suffered by a person if that person intentionally caused the nuclear incident wholly or partly by an act or omission or under circumstances amounting to gross negligence or, in Quebec, gross fault.
Marginal note:No recourse
13. In respect of damage that is caused by a nuclear incident, an operator has no right of recourse against any person other than an individual who intentionally caused the nuclear incident by an act or omission.
Compensable Damage
Marginal note:Bodily injury or damage to property
14. Bodily injury or death and damage to property that are caused by a nuclear incident are compensable.
Marginal note:Psychological trauma
15. Psychological trauma that is suffered by a person is compensable if it results from bodily injury to that person that was caused by a nuclear incident.
Marginal note:Liability for economic loss
16. Economic loss that is incurred by a person as a result of their bodily injury or damage to their property and that is caused by a nuclear incident, or psychological trauma that results from that bodily injury, is compensable.
Marginal note:Costs and wages
17. (1) The costs that are incurred by a person who loses the use of property as a result of a nuclear incident and the resulting wage loss by that person’s employees are compensable.
Marginal note:Power failure
(2) If a nuclear incident occurs at a nuclear installation that generates electricity, the costs resulting from a failure of the installation to provide electricity are not compensable under subsection (1).
Marginal note:Environmental damage — Canada
18. Reasonable costs of remedial measures that are taken to repair, reduce or mitigate environmental damage that is caused by a nuclear incident are compensable if the measures are ordered by an authority acting under federal or provincial legislation relating to environmental protection.
Marginal note:Environmental damage — Contracting State other than Canada
19. Unless the damage is insignificant, reasonable costs of remedial measures that are taken to repair, reduce or mitigate environmental damage that is caused by a nuclear incident are compensable if the measures are ordered by an authority of a Contracting State other than Canada acting under the laws of that State relating to environmental protection.
Marginal note:Preventive measures — Canada
20. (1) If an authority — acting under a nuclear emergency scheme established under federal or provincial legislation — has recommended that measures be taken in a specified area to prevent damage, the following costs and losses of persons who live in, carry on business in, work in or are present in the area are compensable:
(a) the reasonable costs of the measures; and
(b) the costs and economic loss — including lost wages — arising from the loss of use of property.
Marginal note:Non-application
(2) For greater certainty, any federal, provincial or municipal authority, or any of its agencies, that establishes or implements a nuclear emergency scheme is not to be compensated under subsection (1).
Marginal note:Preventive measures — Contracting State other than Canada
21. (1) If an authority — acting under an emergency scheme established under the laws of a Contracting State other than Canada — has recommended that, because of grave and imminent danger of damage, measures be taken in a specified area to prevent such damage, the following costs and losses of persons who live in, carry on business in, work in or are present in the area are compensable:
(a) the reasonable costs of the measures; and
(b) the costs and economic loss — including lost wages — arising from the loss of use of property.
Marginal note:Non-application
(2) For greater certainty, any authority, or any of its agencies, that establishes or implements a nuclear emergency scheme is not to be compensated under subsection (1).
Marginal note:Damage attributable to concomitant nuclear incidents
22. Any damage resulting from a nuclear incident and any concomitant non-nuclear incident is deemed to be damage that is caused by the nuclear incident to the extent that it cannot be identified as having been caused only by the non-nuclear incident.
Marginal note:Damage to means of transport, structure or site
23. If a nuclear incident occurs during the transportation of nuclear material to or from a nuclear installation, or any storage incidental to the transportation, damage to the means of transport or the structure or site where the nuclear material is stored is not compensable under this Act.
Financial Provisions
Marginal note:Limit of operator’s liability
24. (1) The liability of an operator under this Act for damage resulting from a nuclear incident is limited to
(a) $650 million for a nuclear incident arising within one year after the day on which this paragraph comes into force;
(b) $750 million for a nuclear incident arising within one year after the year referred to in paragraph (a);
(c) $850 million for a nuclear incident arising within one year after the year referred to in paragraph (b); and
(d) $1 billion for a nuclear incident arising after the year referred to in paragraph (c).
Marginal note:Amendment to amount of liability
(2) The Governor in Council may, by regulation,
(a) amend subsection (1) to increase any amount of liability; or
(b) reduce the amount of liability applicable to an operator of a nuclear installation, or operators of a class of nuclear installations, having regard to the nature of the installation and the nuclear material contained in it.
Marginal note:Clarification
(3) Subsection (1) does not relieve an operator from payment of the costs of administering claims, court costs or interest on compensation.
Marginal note:Liability — transportation
25. If a nuclear incident occurs during the transportation of nuclear material or storage incidental to the transportation and more than one operator is liable for the damage that is caused by that nuclear incident, the total liability of those operators is limited to the amount referred to in subsection 24(1) in relation to one operator.
Marginal note:Review by Minister
26. (1) The Minister must review the limit of liability, referred to in subsection 24(1), on a regular basis and at least once every five years.
Marginal note:Criteria
(2) In carrying out the review, the Minister must have regard to
(a) changes in the Consumer Price Index, as published by Statistics Canada under the authority of the Statistics Act;
(b) financial security requirements under international agreements respecting nuclear liability; and
(c) any other considerations that the Minister considers relevant.
Marginal note:Operator’s obligation
27. (1) An operator, other than a department listed in Schedule I to the Financial Administration Act, must maintain, for each of the operator’s nuclear installations, financial security to compensate persons who suffer damage that is caused by a nuclear incident in an amount that is equal to the amount referred to in subsection 24(1) or, if the operator is subject to a regulation made under paragraph 24(2)(b), the amount set out in that regulation.
Marginal note:Foreign operator’s obligation — transporting nuclear material within Canada
(2) The Minister may require an operator, as defined in Article 1.I(d) of the Annex to the Convention but who is not an operator as defined in section 2 of this Act, and who is transporting nuclear material within Canada to maintain financial security in an amount prescribed by regulation but not more than the amount referred to in subsection 24(1) to compensate persons who suffer damage that is caused by a nuclear incident.
Marginal note:Non-application
(3) Subsection (2) does not apply
(a) to transport by sea if, under international law, there is a right of entry into a Canadian port in a case of distress, or if there is a right of innocent passage through Canadian territory; and
(b) to transport by air if, under an agreement to which Canada is a party or under international law, there is a right to fly over or land on Canadian territory.
Marginal note:Use of financial security
(4) The financial security is not to be used by an operator referred to in subsection (1) to pay their costs of administering claims, court costs, legal fees or interest on compensation.
Marginal note:Insurance
28. (1) The financial security is to be in the form of insurance with an approved insurer, containing only the terms and conditions set out in a standard insurance policy that is approved by the Minister.
Marginal note:Alternate financial security
(2) The Minister may enter into an agreement with the operator that authorizes that a portion of the financial security be an alternate financial security.
Marginal note:Maximum amount of financial security
(3) The amount of the alternate financial security must not, unless another percentage has been fixed by regulation, exceed 50% of the operator’s liability that is applicable under section 24.
Marginal note:Terms of agreement
(4) The agreement must identify the financial instrument being used as the alternate financial security, specify its dollar value and set out any conditions that the Minister considers appropriate, including a requirement that the operator submit reports or allow the Minister to undertake financial audits in respect of the security or that the operator pay a fee for the authorization of the security or for the audits.
Marginal note:Amendment or revocation
(5) The Minister may amend the conditions of an agreement or revoke an agreement.
Marginal note:Approved insurer
29. The Minister may, subject to any terms and conditions that he or she may impose, designate as an approved insurer any insurer or association of insurers that, in his or her opinion, is qualified to fulfill the obligations of an approved insurer under this Act.
Marginal note:Suspension or cancellation
30. An approved insurer or any provider of an alternate financial security referred to in subsection 28(2) may suspend or cancel an operator’s insurance or alternate financial security only if written notice is given to the Minister at least two months before the suspension or cancellation, but, if the insurance or security relates to the transportation of nuclear material, the cancellation or suspension is not to take effect during the period of transportation to which it relates.
Marginal note:Indemnity agreements — general rule
31. (1) The Minister may enter into an indemnity agreement with an operator under which Her Majesty in right of Canada covers any risks that, in the Minister’s opinion, would not be assumed by an approved insurer.
Marginal note:Indemnity agreements — operator subject to regulation made under paragraph 24(2)(b)
(2) If the nuclear damage is caused by an operator who is subject to a regulation made under paragraph 24(2)(b) and that damage exceeds that operator’s liability under that regulation, the indemnity agreement may also provide that Her Majesty in right of Canada must cover that operator for the difference between the operator’s liability under the regulation and the liability of any other operator under subsection 24(1). Despite the indemnity agreement, the operator remains liable for the damage.
Marginal note:Fees
(3) Any indemnity agreement may provide for the payment of fees to Her Majesty in right of Canada.
Marginal note:Tabling of agreements
(4) The Minister must cause a copy of each indemnity agreement that is entered into under this section to be laid before each House of Parliament on any of the first 30 days on which that House is sitting after the agreement is entered into.
Marginal note:Nuclear Liability Account
32. (1) The Nuclear Liability Reinsurance Account, established in the accounts of Canada under the Nuclear Liability Act, is continued as the Nuclear Liability Account to which are to be
(a) credited all amounts received by Her Majesty in right of Canada as fees under an indemnity agreement; and
(b) charged all amounts that are payable by Her Majesty in right of Canada under an indemnity agreement.
Marginal note:Advances to account out of C.R.F.
(2) If the amount standing to the credit of the Nuclear Liability Account is insufficient for the payment of the amounts that are required under the terms of an indemnity agreement, an amount that is sufficient to meet the deficit is, with the Minister of Finance’s approval, to be paid from the Consolidated Revenue Fund and credited to the Nuclear Liability Account.
Preservation of Certain Rights and Obligations
Marginal note:Certain rights and obligations not limited
33. Nothing in this Act is to be construed as limiting any right or obligation arising under
(a) any contract of insurance;
(b) any scheme or system of health insurance, employees’ compensation or occupational disease compensation; and
(c) any survivor or disability provision of a pension plan.
Judicial Proceedings
Marginal note:Where action is to be brought
34. (1) An action involving damage that is caused by a nuclear incident is to be brought in the court in Canada that has jurisdiction in the place where the incident occurs.
Marginal note:Federal Court jurisdiction
(2) The Federal Court has jurisdiction if the nuclear incident occurs
(a) in more than one province;
(b) partly within a province and partly within Canada’s exclusive economic zone; or
(c) within Canada’s exclusive economic zone.
Marginal note:Additional jurisdiction of Federal Court
(3) If the nuclear incident occurs outside the territory or the exclusive economic zone of any Contracting State, or the place where the nuclear incident occurred cannot be determined with certainty, the Federal Court has jurisdiction if the nuclear incident is caused by an operator.
Marginal note:Concurrent jurisdiction
(4) If a court of a Contracting State other than Canada has concurrent jurisdiction for a claim or action for damage under this Act, Canada and the other Contracting State must determine, by agreement, which court is to have exclusive jurisdiction.
Marginal note:Recognition of foreign judgments
(5) A court of competent jurisdiction in Canada must, as soon as feasible on receipt of an application, recognize and enforce a judgment of a court of a Contracting State other than Canada that, in addition to meeting the criteria under Canadian law for being recognized in Canada, is rendered in accordance with the Convention.
Marginal note:Restriction on jurisdiction
(6) Except as provided in this Act, no court in Canada and no tribunal has jurisdiction to entertain any application or grant any relief or remedy relating to damage that occurs outside Canada or its exclusive economic zone.
Marginal note:Limitation on bringing actions and claims
35. (1) An action or claim must be brought within three years
(a) in the case of an action or claim for loss of life, after the day on which the person bringing the action or making the claim had knowledge or ought reasonably to have had knowledge of both the loss of life and the identity of the operator who is responsible for the loss of life;
(b) in the case where conclusive evidence of the loss of life is not available, after the day on which both an order presuming the person to be dead is made by a court having jurisdiction and the person bringing the action or making the claim had knowledge or ought reasonably to have had knowledge of the identity of the operator who is responsible for the presumed loss of life; and
(c) in any other case, after the day on which the person bringing the action or making the claim had knowledge or ought reasonably to have had knowledge of both the damage and the identity of the operator who is responsible for the damage.
Marginal note:Absolute limit
(2) No action or claim is to be brought
(a) in relation to bodily injury or death, 30 years after the day on which the nuclear incident to which the action or claim relates occurred; and
(b) in any other case, 10 years after the day on which the nuclear incident to which the action or claim relates occurred.
Marginal note:Exception
(3) Despite subsection (2), if the damage is the result of a nuclear incident involving nuclear material that was, at the time of the nuclear incident, lost, stolen, jettisoned or abandoned, no action or claim is to be brought 20 years after the day on which the loss, theft, jettison or abandonment occurred.
Marginal note:Extension of period
(4) The Governor in Council may, by regulation, extend the period set out in subsection (1).
NUCLEAR CLAIMS TRIBUNAL
Governor in Council’s Declaration
Marginal note:Declaration
36. (1) The Governor in Council may declare that claims in respect of a nuclear incident are to be dealt with by a Tribunal, if he or she believes that it is in the public interest to do so, having regard to the extent and the estimated cost of the damage, and the advantages of having the claims dealt with by an administrative tribunal.
Marginal note:Publication
(2) The declaration is not a statutory instrument for the purposes of the Statutory Instruments Act, but it must be published, without delay, in the Canada Gazette, Part II.
Marginal note:Effect of declaration
37. (1) Section 34 ceases to apply in respect of a nuclear incident on the day on which a declaration is made under subsection 36(1), and any proceedings brought or taken before the declaration is made are discontinued.
Marginal note:New jurisdiction
(2) Any claims that could have been made before the declaration is made are, after the day on which it is made, only to be brought before the Tribunal.
Report to Parliament
Marginal note:Report on nuclear incident
38. The Minister must, without delay, after a declaration is made under subsection 36(1), cause a report estimating the cost of the indemnification for the damage arising from a nuclear incident to be laid before each House of Parliament.
Interim Financial Assistance
Marginal note:Interim financial assistance
39. (1) During the period that begins when a declaration is made under subsection 36(1) and ends when the notice is published under subsection 42(2), the Minister may pay interim financial assistance to persons who, in the Minister’s opinion, have suffered damage as a result of the nuclear incident to which the declaration relates. The Minister must inform the Tribunal of the names of those persons and the amounts paid.
Marginal note:Maximum amount
(2) The maximum amount that is to be paid under subsection (1) must not exceed 20% of the difference between
(a) the amount set out in subsection 24(1), and
(b) the total amounts that are paid by the operator, before the declaration is made under subsection 36(1), to compensate persons for damage arising from the nuclear incident.
Marginal note:Power to make agreements
40. The Minister may enter into an agreement with any person, association of insurers or province for the carrying out of the Minister’s duties or functions by that person, association of insurers or province in relation to the payment of interim financial assistance.
Establishment of a Nuclear Claims Tribunal
Marginal note:Tribunal’s establishment
41. (1) The Governor in Council must, as soon as feasible after a declaration is made under subsection 36(1), establish a nuclear claims Tribunal and designate the location of its head office in Canada.
Marginal note:Purpose
(2) The Tribunal’s purpose is to examine and adjudicate claims for damage arising from the nuclear incident as expeditiously as the circumstances and considerations of fairness permit.
Marginal note:Claims treated equitably
(3) The Tribunal must carry out its duties and functions with respect to claims for damage in an equitable manner, without discrimination on the basis of nationality or residence.
Marginal note:Public notice
42. (1) The Tribunal must notify the public, in a manner that it considers appropriate, of the details of its purpose and how to obtain information on bringing a claim.
Marginal note:Publication
(2) A notice of the Tribunal’s purpose and how to obtain information on bringing a claim must also be published, without delay, in the Canada Gazette.
Marginal note:Members of Tribunal
43. (1) The Governor in Council must appoint a minimum of five persons to the Tribunal, one of whom is to be designated as the chairperson.
Marginal note:Members’ qualifications
(2) A majority of the members of the Tribunal are to be appointed from among persons who are sitting or retired judges of a superior court or members of at least 10 years’ standing at the bar of a province or the Chambre des notaires du Québec.
Marginal note:Remuneration
(3) The members are to be paid the remuneration and expenses fixed by the Governor in Council.
Marginal note:Term of office
44. Each member of the Tribunal is to be appointed to hold office during good behaviour for a term that the Governor in Council considers appropriate and may be removed for cause.
Marginal note:Immunity
45. No civil proceedings lie against any member of the Tribunal for anything done or omitted to be done by the member in good faith in the exercise or purported exercise of a power or in the performance or purported performance of a duty or function of the Tribunal.
Marginal note:Tribunal’s staff
46. The Tribunal may employ the staff that it considers necessary for the proper conduct of its duties or functions, prescribe their duties and, subject to any regulations, their terms and conditions of employment and, with the approval of the Treasury Board, fix and pay their remuneration.
Marginal note:Technical or specialized knowledge
47. The Tribunal may engage, on a temporary basis, the services of counsel and other persons having technical or specialized knowledge to assist the Tribunal in its work, establish the terms and conditions of their employment and, with the approval of the Treasury Board, fix and pay their remuneration and expenses.
Marginal note:Inconsistency
48. In the event of an inconsistency between a provision of the Judges Act and any provision of this Act that is applicable to a sitting or retired judge, the Judges Act prevails to the extent of the inconsistency.
Tribunal’s Powers and Duties
Marginal note:Hearings
49. The Tribunal is to hold its hearings in Canada at the times and locations that it considers appropriate.
Marginal note:Intervenor
50. The Attorney General of Canada and the competent authority of any other Contracting State may intervene in proceedings that are before the Tribunal.
Marginal note:Powers — witnesses and documents
51. (1) The Tribunal has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters that are necessary or proper for the due exercise of its jurisdiction, all of the powers, rights and privileges that are vested in a superior court.
Marginal note:Evidence at hearings
(2) The Tribunal is not, in the hearing of any claim, bound by the legal rules of evidence, but it must not receive as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.
Marginal note:Foreign evidence
(3) The Tribunal may issue commissions to take evidence outside Canada and may make orders for that purpose and for the return and use of the evidence so obtained.
Marginal note:Examinations
52. The Tribunal may require persons claiming compensation to undergo medical or other examinations that are, in the Tribunal’s opinion, reasonably necessary to enable it to determine their claims.
Marginal note:Frivolous or vexatious claims
53. The Tribunal may refuse to hear any claim referred to it that it considers to be frivolous or vexatious.
Marginal note:Report on Tribunal’s activities
54. The Tribunal must, at the Minister’s request, submit to him or her a report on its activities. The Minister must cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after he or she receives it.
Marginal note:Rules
55. The Tribunal may make any rules that it considers necessary for the exercise of its powers and the performance of its duties and functions, including rules respecting
(a) procedures for bringing claims;
(b) the form and manner in which evidence is to be submitted;
(c) a quorum;
(d) procedures that claims officers are to follow in dealing with claims;
(e) fees and travel expenses that are to be paid to witnesses;
(f) the allowance of costs; and
(g) appeals and rehearings.
Claims
Marginal note:Panels
56. (1) The chairperson may establish panels of the Tribunal consisting of one or more members to hear claims.
Marginal note:Claims officer
(2) The Tribunal may, in order to process claims expeditiously, establish classes of claims that may be determined by the claims officer without an oral hearing and designate as a claims officer anyone that it considers qualified.
Marginal note:Powers and duties
(3) A panel or claims officer must exercise the powers and perform the duties and functions of the Tribunal with respect to claims that are before that panel or claims officer.
Marginal note:Notice
57. The chairperson must assign a claim to a panel or claims officer and notify the claimant, the operator and the Minister of the assignment.
Marginal note:Public hearings
58. Panel hearings are to be held in public. However, a panel may hold all or part of a hearing in private if, in its opinion, a person’s privacy interest outweighs the principle that hearings be open to the public.
Marginal note:Interim award of compensation
59. (1) The Tribunal may award interim compensation in respect of a claim that is heard by it before it makes a decision with respect to the claim.
Marginal note:Payment
(2) The Tribunal must inform the Minister of the amount of the interim compensation awarded, and the Minister must pay that amount to the claimant.
Marginal note:Notice — decision
60. (1) The Tribunal must notify the claimant and the operator of its decision with respect to the claim.
Marginal note:Awards of compensation
(2) If the Tribunal decides to award compensation in respect of a claim, the notification must also be sent to the Minister and must indicate
(a) the amount of the award;
(b) any reduction in that amount applicable under the regulations; and
(c) any amounts that have already been paid with respect to the claim in accordance with this Act.
Marginal note:Costs and interest
(3) The amount of the award must not include any costs awarded to the claimant in any proceeding that is before the Tribunal or any interest payable on that award.
Rehearing and Appeal
Marginal note:Rehearing of claims officer’s decision
61. A claimant or operator who is dissatisfied with a claims officer’s decision may, within 30 days after receiving notification of the decision, apply to the Tribunal for a rehearing by a panel.
Marginal note:Appeal
62. (1) If a claim has been heard by a panel that consists of fewer than three members, the claimant or operator may, within 30 days after receiving notification of the decision, apply in writing to the chairperson for leave to appeal.
Marginal note:Hearing of appeal
(2) The appeal is to be heard and decided by a panel consisting of three other members.
Marginal note:Decision
(3) The appeal is to be heard on the basis of the record of the panel whose decision is appealed and on the submissions of interested parties. The panel hearing the appeal may, in exceptional circumstances, if, in its opinion, it is essential in the interests of justice to do so, admit additional evidence or testimony.
Marginal note:Judicial review
63. Subject to sections 61 and 62, every decision of the Tribunal is final and conclusive and is not to be questioned or reviewed in any court except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.
Financial Provisions
Marginal note:Payment of awards
64. At the end of the period to apply for a rehearing or make an appeal, the Minister must pay to the claimant the amount of the award less the total of the amounts referred to in paragraphs 60(2)(b) and (c).
Marginal note:Recovery of overpayment
65. Any overpayment is a debt that is due to Her Majesty in right of Canada and may be recovered in accordance with section 155 of the Financial Administration Act.
Marginal note:Payments out of Nuclear Liability Account
66. (1) All payments made by the Minister are to be paid out of the Nuclear Liability Account.
Marginal note:Advances to account out of C.R.F.
(2) If the amount standing to the credit of the Nuclear Liability Account is insufficient for the payment of the amounts that are required, an amount that is sufficient to meet the deficit is, with the Minister of Finance’s approval, to be paid from the Consolidated Revenue Fund and credited to the Nuclear Liability Account.
Marginal note:Operator’s liability to Her Majesty
67. (1) When a declaration is made under subsection 36(1), the operator who is liable for the damage that is caused by a nuclear incident must pay to Her Majesty in right of Canada an amount that is equal to the lesser of
(a) the amount set out in subsection 24(1) — or, if the operator is subject to a regulation made under paragraph 24(2)(b), the amount set out in that regulation — less the total amounts that were paid by the operator to compensate persons for damage arising from the nuclear incident before the declaration under subsection 36(1) is made, and
(b) the total of all amounts that are paid by the Minister under section 64.
Marginal note:Failure to pay
(2) If the operator fails to pay any amount that is due, it must be paid to Her Majesty in right of Canada by
(a) the approved insurer, for the financial security that is in the form of insurance; or
(b) the issuer of the financial instrument, for alternate financial security.
Marginal note:Amount paid by operator, approved insurer or issuer of security
(3) The operator, the approved insurer or the issuer of the financial instrument, as the case may be, must pay to Her Majesty in right of Canada, at the Minister’s request, any amount that is specified in the request.
Marginal note:Limitation
(4) The total amount that is requested by the Minister under subsection (3) in respect of any year must not be more than the total amount that is paid by the Minister under section 39, subsection 59(2) and section 64.
Marginal note:Debt due to Crown
(5) An amount that is not paid as required under subsection (3) is a debt that is due to Her Majesty in right of Canada and may be recovered in accordance with section 155 of the Financial Administration Act.
Marginal note:Nuclear Liability Account
(6) Any amount received by Her Majesty in right of Canada under this section is to be credited to the Nuclear Liability Account.
Marginal note:Limit of payments
68. (1) The Tribunal must not award, in respect of a nuclear incident, an amount that is more than the amount set out in subsection 24(1) less the total of all amounts that are paid by the operator to compensate persons for damage arising from the nuclear incident before the declaration is made under subsection 36(1).
Marginal note:Additional funds — public funds
(2) Despite subsection (1), if the Minister makes a call for public funds under subsection 72(1), the Tribunal may award an additional amount of funds that are equal to the amount of public funds that are paid by Contracting States.
Marginal note:Further funds — Parliament
(3) If further funds are appropriated by Parliament to provide compensation for damage arising from the nuclear incident, the Tribunal may award those further funds for the damage.
Marginal note:Changes to reductions
69. (1) If a regulation made under paragraph 80(b) is amended, the Tribunal must inform the Minister of any change to applicable reductions that is to the advantage of any claimant who was not fully compensated because of the previous regulation.
Marginal note:Payment
(2) The Minister must pay to the claimant the difference between the amount that has already been paid and the amount that would be paid under the amended regulation.
Marginal note:Consideration of new claims
(3) If a regulation made under paragraph 80(c) is amended, the Tribunal may consider any new claim for which compensation could not be awarded because of the previous regulation.
RECIPROCATING AGREEMENTS
Marginal note:Reciprocating countries
70. (1) If in the Governor in Council’s opinion satisfactory arrangements exist in any country for compensation in that country and in Canada for damage resulting from the production, processing, transport, storage, use or disposition of nuclear material, he or she may declare that country to be a reciprocating country for the purposes of this Act.
Marginal note:Regulations
(2) The Governor in Council may, with respect to a reciprocating country, make any regulations that he or she considers necessary to implement any agreement between Canada and the reciprocating country relating to damage resulting from the production, processing, transport, storage, use or disposition of nuclear material.
OTHER INTERNATIONAL OBLIGATIONS
Marginal note:Additional liability — call for public funds
71. (1) When a call for public funds is made under subsection 72(1), those funds are to be used to compensate the damage that is suffered, if it
(a) occurs in the territory of a Contracting State;
(b) occurs in or above the exclusive economic zone of a Contracting State or on the continental shelf of a Contracting State, and relates to the exploitation or exploration of the natural resources of that exclusive economic zone or continental shelf; or
(c) occurs in or above the maritime areas beyond the territorial sea of a Contracting State — on board or by a ship flying the flag of a Contracting State, on board or by an aircraft registered in a Contracting State, on or by an artificial island, on or by an installation or a structure under a Contracting State’s jurisdiction or by a national of a Contracting State.
Marginal note:Exception
(2) The public funds are not to be used to compensate the damage that is referred to in paragraph (1)(c) if the damage that is suffered occurs in the territorial sea of a non-Contracting State.
Marginal note:Preventive measure — liability
(3) The public funds may also be used to compensate the damage that is caused in one of the areas referred to in paragraph (1)(a) or (b) by a preventive measure that was taken under subsection 20(1) or 21(1) in relation to the operator’s nuclear installation or in relation to any transportation for which the operator is responsible.
Meaning of “national of a Contracting State”
(4) In subsection (1), a “national of a Contracting State” includes any subdivision of the Contracting State and any entity that is established or incorporated in that State.
Marginal note:Financial contribution — call for public funds by Canada
72. (1) If in the Minister’s opinion a nuclear incident for which the Tribunal or any other Canadian court has jurisdiction will result, or is likely to result, in compensation for damage that exceeds the amount made available by Canada, under Article III.1(a) of the Convention, and public funds may be necessary to compensate the damages that are caused in one of the areas that are referred to in subsection 71(1), he or she must immediately give notice under Article VI of the Convention to all other Contracting States and, if in his or her opinion public funds are necessary to compensate the damage, he or she must make a call for public funds under Article VII.1 of the Convention.
Marginal note:Canada’s contribution
(2) When the Minister makes a call for public funds, he or she must calculate the amount of public funds that are to be contributed by Canada, in accordance with the formula provided for by regulation.
Marginal note:Advances out of C.R.F.
(3) If the amount standing to the credit of the Nuclear Liability Account is insufficient for the purposes of subsection (2), an amount that is sufficient to meet the deficit is, with the Minister of Finance’s approval, to be paid from the Consolidated Revenue Fund and credited to the Nuclear Liability Account.
Marginal note:Public funds credited to Nuclear Liability Account
(4) The Minister must have all public funds to be contributed by Canada and other Contracting States, as a result of a call for public funds, credited to the Nuclear Liability Account.
Marginal note:Payment from Nuclear Liability Account
(5) When an award is final or when a decision concerning an action for damage is final or not subject to an appeal, the public funds that are payable by the Minister to compensate the damages that are caused in one of the areas that are referred to in subsection 71(1) are to be paid out of the Nuclear Liability Account.
Marginal note:Canada’s financial contribution — call for public funds by other Contracting State
73. (1) When a Contracting State other than Canada makes a call for public funds under Article VII.1 of the Convention and if in the Minister’s opinion the claims for compensation cannot be satisfied out of the amount that the Installation State has made available in accordance with Article III.1(a) of the Convention, the Minister must, without delay, cause public funds to be paid by Canada to that Contracting State that are calculated in accordance with the formula provided for by regulation.
Marginal note:Advances out of C.R.F.
(2) If the amount standing to the credit of the Nuclear Liability Account is insufficient for the purposes of subsection (1), an amount that is sufficient to meet the deficit is, with the Minister of Finance’s approval, to be paid from the Consolidated Revenue Fund and credited to the Nuclear Liability Account.
Marginal note:Payment from Nuclear Liability Account
(3) Any public funds that are payable are to be paid by the Minister out of the Nuclear Liability Account.
Marginal note:Reimbursement
74. Members of the nuclear industry who are prescribed by regulations must reimburse the Minister, in the prescribed manner and by the prescribed proportion, for any public funds that were contributed by Canada under section 72 or 73, in accordance with the prescribed formula, within the fiscal year in which the payments are made. The amounts received by the Minister are to be credited to the Nuclear Liability Account.
Marginal note:Recognition of settlements — Contracting State other than Canada
75. The Minister must recognize a settlement by a Contracting State other than Canada that is made in accordance with the laws of that Contracting State and that is, in respect of the payment out of public funds, for compensation for the damage to which the Convention applies.
Marginal note:Subrogation — contribution by Canada
76. (1) If the public funds that were contributed by Canada under section 72 have been paid by the Minister, the Attorney General of Canada may exercise an operator’s right of recourse under section 13.
Marginal note:Subrogation — contribution by Contracting State other than Canada
(2) If public funds were contributed by a Contracting State other than Canada under Article VII.2 of the Convention, that Contracting State may exercise an operator’s right of recourse under section 13.
Marginal note:Subrogation — request of Contracting State other than Canada
(3) The Attorney General of Canada may, at the request of a Contracting State other than Canada that contributed public funds under Article VII.2 of the Convention, exercise an operator’s right of recourse under section 13 on that Contracting State’s behalf.
Marginal note:Denial of request — subrogation by Contracting State other than Canada
(4) If, despite the request referred to in subsection (3), the Attorney General of Canada does not exercise an operator’s right of recourse under section 13 within three months after that request, the Contracting State may exercise that right.
Marginal note:Distribution of public funds
(5) The Minister must, within a reasonable time, distribute any public funds recovered under subsection (3) to the Contracting States in proportion to the public funds that they contributed.
OFFENCE AND PUNISHMENT
Marginal note:Failure to maintain financial security
77. (1) An operator who contravenes subsection 27(1) or who does not hold financial security in the form and manner required by section 28 commits an offence and is liable on summary conviction to a fine of not more than $300,000 for each day on which the offence is committed or continued.
Marginal note:Due diligence
(2) No operator is to be found guilty of the offence if it is established that the operator exercised due diligence to prevent its commission.
REGULATIONS
Marginal note:Regulations — general
78. The Governor in Council may make regulations
(a) fixing another percentage for the purpose of subsection 28(3);
(b) prescribing classes of nuclear installations;
(c) providing for the formula that is to be used to calculate the amount referred to in subsections 72(2) and 73(1);
(d) prescribing the members of the nuclear industry who are required to reimburse the Minister under section 74, and respecting the manner of calculating the amount of those payments and the manner in which those payments are to be made;
(e) prescribing any matter or thing that under this Act is to be or may be prescribed; and
(f) generally, for carrying out the purposes and provisions of this Act.
Marginal note:Regulations — Tribunal
79. The Governor in Council may make regulations respecting the Tribunal, including regulations
(a) prescribing the terms and conditions of appointment of its members;
(b) respecting conflict of interest;
(c) prescribing the chairperson’s powers and duties;
(d) respecting the absence or incapacity of the chairperson or another member; and
(e) respecting the hiring and terms and conditions of employment of claims officers and other employees of the Tribunal.
Marginal note:Regulations — compensation
80. The Governor in Council may make regulations respecting the compensation that may be awarded by the Tribunal, including regulations
(a) establishing priorities for classes of damage;
(b) reducing awards on a pro rata basis for specified classes of damage and fixing a maximum award within a specified class of damage, for the purposes of paragraph 60(2)(b); and
(c) establishing classes of damage for which compensation is not to be awarded.
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