Budget Implementation Act, 2018, No. 2 (S.C. 2018, c. 27)
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Assented to 2018-12-13
PART 4Various Measures (continued)
DIVISION 232001, c. 6Marine Liability Act (continued)
Amendments to the Act (continued)
718 The Act is amended by adding the following after section 93:
Marginal note:Consolidated Revenue Fund
93.1 If the amount to the credit of the Ship-source Oil Pollution Fund is insufficient to pay any amount that is charged to that Fund under any of paragraphs 92(3)(a) to (f), the Minister of Finance may, subject to any terms and conditions that he or she considers appropriate, direct that a sum equal to the amount required to be paid be charged to the Consolidated Revenue Fund and credited to the Ship-source Oil Pollution Fund.
719 Sections 97 and 98 of the Act are replaced by the following:
Marginal note:Conflict of interest
97 (1) The Administrator or Deputy Administrator shall not accept or hold any office or employment, or carry on any activity, that is inconsistent with his or her powers, duties and functions under this Part.
Marginal note:Effect of contravention
(2) If the Administrator or Deputy Administrator contravenes subsection (1), his or her appointment is terminated on a date fixed by the Governor in Council that is not later than 30 days after the day on which the notice of the contravention is received by the Minister, but the contravention does not affect the validity of any act performed by the Administrator or Deputy Administrator, as the case may be, under this Part between the date of the contravention and the date that the appointment is terminated.
Marginal note:Remuneration
98 (1) The Administrator and the Deputy Administrator are to be paid, for the exercise of their powers and the performance of their duties and functions, the remuneration fixed by the Governor in Council.
Marginal note:Travelling, living and other expenses
(1.1) The Administrator and the Deputy Administrator are to be paid, in accordance with Treasury Board directives, reasonable travel, living and other expenses incurred in exercising their powers or performing their duties and functions under this Part while absent from their ordinary place of work.
Marginal note:Payment out of Consolidated Revenue Fund
(1.2) On the direction of the Minister of Finance, the remuneration and expenses referred to in subsections (1) and (1.1) and all other costs and expenses incurred by the Administrator and the Deputy Administrator in exercising their powers and performing their duties and functions under this Part are to be paid out of the Consolidated Revenue Fund and charged to the Ship-source Oil Pollution Fund as provided for by paragraph 92(3)(d).
Marginal note:Taxation
(2) The Admiralty Court’s assessment officers may, at the Minister of Justice’s request, tax any account for costs and expenses, other than expenses referred to in subsection (1.1), incurred by the Administrator and the Deputy Administrator in exercising their powers or performing their duties and functions as if they were acting for Her Majesty in proceedings in that Court.
720 The Act is amended by adding the following before section 101:
Process for Claims
721 (1) The portion of subsection 101(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Liability of Ship-source Oil Pollution Fund
101 (1) Subject to the other provisions of this Part, the Ship-source Oil Pollution Fund is liable in relation to oil for the matters referred to in sections 51, 71 and 77, Article III of the Civil Liability Convention and Article 3 of the Bunkers Convention in respect of any kind of loss, damage, costs or expenses — including economic loss caused by oil pollution suffered by persons whose property has not been polluted — if
(2) Section 101 of the Act is amended by adding the following after subsection (1):
Marginal note:Additional liability of Ship-source Oil Pollution Fund
(1.1) Subject to the other provisions of this Part, the Ship-source Oil Pollution Fund is liable for the costs and expenses incurred by the Minister of Fisheries and Oceans or any other person in respect of measures taken under subsection 180(1) of the Canada Shipping Act, 2001 with respect to oil, or for loss or damage caused by those measures, for which neither the owner of a ship, the International Fund nor the Supplementary Fund is liable by reason of the fact that the occurrence or series of occurrences for which those costs and expenses were incurred did not create a grave and imminent threat of causing oil pollution damage.
722 (1) Paragraph 102(1)(a) of the Act is replaced by the following:
(a) the Administrator may, either before or after receiving a claim under section 103 or 106.1, commence an action in rem against the ship that is the subject of the claim, or against any proceeds of sale of the ship that have been paid into court; and
(2) Subsection 102(2) of the Act is replaced by the following:
Marginal note:Subrogation
(2) The Administrator may continue the action only if he or she has become subrogated to the rights of the claimant under paragraph 106(3)(c) or 106.3(5)(b).
723 (1) Subsection 103(1) of the Act is replaced by the following:
Marginal note:Claims filed with Administrator
103 (1) In addition to any right against the Ship-source Oil Pollution Fund under section 101, a person may file a claim with the Administrator for the loss, damage, costs or expenses if the person has suffered loss or damage, or incurred costs or expenses, referred to in section 51, 71 or 77, Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention in respect of any kind of loss, damage, costs or expenses arising out of actual or anticipated oil pollution damage, including economic loss caused by oil pollution suffered by persons whose property has not been polluted.
Marginal note:Claims filed with Administrator — costs or expenses under subsection 101(1.1)
(1.1) In addition to any right against the Ship-source Oil Pollution Fund under subsection 101(1.1), if the Minister of Fisheries and Oceans or any other person has suffered loss or damage, or incurred costs or expenses, referred to in that subsection, that Minister or that person may file a claim with the Administrator for the loss, damage, costs or expenses.
(2) The portion of subsection 103(2) of the Act before paragraph (a) is replaced by the following:
Marginal note:Limitation or prescription period
(2) The claim must be made
(3) Subsection 103(3) of the Act is replaced by the following:
Marginal note:Multiple occurrences
(2.1) For the purposes of subsection (2), if an incident as a result of which oil pollution damage occurs or in respect of which oil pollution damage is anticipated consists of a series of occurrences, the period of five years referred to in that subsection begins on the day of the first occurrence in that series.
Marginal note:Exception
(3) Subsections (1) and (1.1) do not apply to a response organization referred to in paragraph 51(1)(a), 71(1)(a) or 77(1)(b) or to a person in a state other than Canada.
724 Paragraph 105(3)(a) of the Act is replaced by the following:
(a) whether it is for loss, damage, costs or expenses referred to in subsection 103(1) or (1.1), as the case may be; and
725 The Act is amended by adding the following after section 106:
Expedited Process for Small Claims
Marginal note:Expedited claims — small amounts
106.1 (1) A person may file a claim with the Administrator under this section if the claim meets the following conditions:
(a) the claim is for loss, damage, costs or expenses referred to in subsection 103(1) — other than economic loss referred to in that subsection — or (1.1) suffered or incurred by the claimant;
(b) the claim is the first one that the claimant has filed in respect of a given occurrence for loss, damage, costs or expenses referred to in paragraph (a) and does not exceed $35,000 or, if any other amount is fixed by regulations made under paragraph 106.8(b), that amount; and
(c) the claim did not result, wholly or partially, from an act done or omitted to be done by the claimant with intent to cause damage or from the claimant’s negligence.
Marginal note:Contents of claim
(2) The claim must set out
(a) a description of the occurrence that gives rise to the claim, as well as of the loss or damage suffered, or costs or expenses incurred, by the claimant that the claim is for;
(b) the amount claimed for the loss, damage, costs and expenses;
(c) the claimant’s attestation to
(i) the truth of the facts set out in the claim,
(ii) their having no reason to believe that the occurrence was not caused by a ship,
(iii) their ability to provide the Administrator, on request, with supporting documents in respect of the loss, damage, costs or expenses, and
(iv) any other information prescribed by the regulations; and
(d) any other information prescribed by the regulations.
Marginal note:Significant incident — increased claim limit
(3) If, in the Administrator’s opinion, a discharge of oil from a ship constitutes a significant incident, the Administrator may, by order, specify that the amount set out in paragraph (1)(b) for a claim in respect of that significant incident is $50,000 or, if any other amount is fixed by regulations made under paragraph 106.8(d), that amount. If the Administrator makes the order, then he or she shall ensure that a notice to that effect is made available to the public.
Marginal note:Limitation or prescription period
(4) A claim under subsection (1) must be made
Marginal note:Multiple occurrences
(5) For the purposes of subsection (4), if an incident as a result of which oil pollution damage occurs or in respect of which oil pollution damage is anticipated consists of a series of occurrences, the one-year period referred to in that subsection is the year after the day of the first occurrence in that series.
Marginal note:Exception
(6) Subsection (1) does not apply to a response organization referred to in paragraph 51(1)(a), 71(1)(a) or 77(1)(b) or to a person in a state other than Canada.
Marginal note:Liability — exception
106.2 Section 106.1 does not apply in respect of actual or anticipated oil pollution damage on or in any place referred to in paragraph 104(a) or (b).
Marginal note:Administrator’s duties
106.3 (1) Within 60 days beginning on the day of receipt of a claim under subsection 106.1(1), the Administrator shall assess the claim.
Marginal note:Disallowance of claim
(2) If the Administrator has reason to suspect that the claim does not meet one or more of the conditions set out in subsection 106.1(1) or does not comply with subsection 106.1(2), the Administrator shall, within the 60-day period, disallow the claim and notify the claimant of its disallowance in writing.
Marginal note:Disallowed claim — other rights unaffected
(3) The disallowance of a claim under subsection (2) does not prevent the claimant from exercising their rights under this Act — other than under section 106.1 — in respect of the loss, damage, costs and expenses for which the disallowed claim was filed.
Marginal note:Payment of claim
(4) If the Administrator does not have reason to suspect that the claim does not meet one or more of the conditions set out in subsection 106.1(1) or does not comply with subsection 106.1(2), the Administrator shall, within the period referred to in subsection (1), direct payment to be made to the claimant of the amount of the claim out of the Ship-source Oil Pollution Fund.
Marginal note:Subrogation
(5) Once the Administrator directs the payment to be made,
(a) the claimant is precluded from pursuing any rights — except for economic loss referred to in subsection 103(1) — that they may have had against the Ship-source Oil Pollution Fund or any person in respect of matters referred to in sections 51, 71 and 77, subsections 101(1.1) and 103(1.1), Article III of the Civil Liability Convention and Article 3 of the Bunkers Convention in relation to the occurrence to which the payment relates; and
(b) the Administrator is, to the extent of the payment to the claimant, subrogated to any of the claimant’s rights for any part of that payment that may be recovered from the owner of the ship, the International Fund, the Supplementary Fund or any other person liable.
Marginal note:Recovery of amount of payment
(6) If the Administrator directs a payment to be made under subsection (4), he or she shall take all reasonable measures to recover the part of the payment referred to in paragraph (5)(b) and, for that purpose, may, among other things, commence an action in the Administrator’s or the claimant’s name, commence a claim against the fund of the owner of a ship established under the Civil Liability Convention and enforce any security provided to or enforceable by the claimant.
Marginal note:Supporting documents
106.4 (1) If the Administrator directs a payment to be made to a claimant under subsection 106.3(4), the Administrator may, within three years after the day of the occurrence in respect of which the payment was directed to be made, request the claimant to provide the Administrator with the supporting documents referred to in subparagraph 106.1(2)(c)(iii).
Marginal note:Period
(2) If the Administrator requests supporting documents under subsection (1), the claimant must provide them to the Administrator within 30 days beginning on the day on which the claimant receives the request or within any longer period agreed to by the Administrator and the claimant.
Marginal note:Failure to provide supporting documents
(3) If the claimant does not provide the Administrator with the supporting documents within the applicable period, the Administrator may give the claimant a notice that they are required to repay to the Administrator the amount of the payment made to them under subsection 106.3(4), in the manner and within the period set out in the notice.
Marginal note:Post-payment investigation and reassessment
106.5 (1) The Administrator may, within three years after the day of the occurrence in respect of which the claim was made, investigate and reassess any claim for which a payment was made under subsection 106.3(4).
Marginal note:Administrator’s powers
(2) For the purpose of investigating and reassessing a claim, the Administrator has the powers of a commissioner under Part I of the Inquiries Act.
Marginal note:Factors to be considered
(3) When investigating and reassessing a claim, the Administrator may consider only whether the claim meets the conditions set out in subsection 106.1(1).
Marginal note:Result of investigation and reassessment
106.6 (1) As soon as feasible after completing the investigation and reassessment, the Administrator shall give the claimant notice that
Marginal note:Overpayments
(2) The following amounts paid under subsection 106.3(4) constitute an overpayment to the claimant:
(a) an amount paid in respect of a claim that the Administrator is satisfied was not for loss, damage, costs or expenses referred to in paragraph 106.1(1)(a);
(b) an amount that was paid in respect of a claim that the Administrator is satisfied was not the first one that the claimant has filed in respect of a given occurrence for loss, damage, costs or expenses referred to in that paragraph;
(c) an amount that was paid in respect of a claim that the Administrator is satisfied resulted from an act done or omitted to be done by the claimant with intent to cause damage or from the claimant’s negligence; and
(d) an amount that was paid in respect of a claim, if the Administrator is satisfied on the evidence that the occurrence that gave rise to the claim was not caused by a ship.
Marginal note:Overpayments — limitation or prescription period exceeded
(3) The Administrator may, in his or her discretion, determine that an amount paid under subsection 106.3(4) constitutes an overpayment to the claimant if the Administrator is satisfied that the amount was paid in respect of a claim that was not filed within the period set out in subsection 106.1(4).
Marginal note:Appeal to Admiralty Court
(4) A claimant may, within 60 days after receiving a notice under paragraph (1)(b), appeal to the Admiralty Court the requirement to pay the overpayment set out in the notice referred to in that paragraph.
Marginal note:Debts due to Her Majesty
106.7 Unless the claimant under subsection 106.1(1) is a minister of the Crown in right of Canada, all amounts and overpayments payable under subsection 106.4(3) or paragraph 106.6(1)(b), respectively, constitute debts due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction from the person who is required to pay them.
Marginal note:Regulations
106.8 The Governor in Council may make regulations
(a) respecting claims filed under subsection 106.1(1);
(b) fixing an amount for the purposes of paragraph 106.1(1)(b);
(c) prescribing information for the purposes of subparagraph 106.1(2)(c)(iv) or paragraph 106.1(2)(d); and
(d) fixing an amount for the purposes of subsection 106.1(3).
Marginal note:Definitions
106.9 In sections 106.1 to 106.6, incident and occurrence have the meaning assigned by the definition incident in Article I of the Civil Liability Convention.
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