PART 2Safety, Security and Protection of Persons, Property and Environment (continued)
Administrative Monetary Penalties (continued)
(2) The Commission must conduct the review if the notice of violation was issued by a person designated under subsection 116(1.1).
Marginal note:Object of review
128 (1) The Commission or the person conducting the review must determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the person committed the violation, or both.
(2) The Commission or the person conducting the review must make a determination in writing and cause the person who requested the review to be served with a copy of the determination and the reasons for it.
Marginal note:Correction of penalty
(3) If the Commission or the person conducting the review determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Commission or the person, as the case may be, must correct the amount of the penalty.
(4) If the Commission or the person conducting the review determines that the person who requested the review committed the violation, the person who requested the review is liable to the penalty as set out in the determination.
Marginal note:Determination final
(5) Despite subsection 69(1) and (2), a determination made under this section is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.
Marginal note:Federal Court
(6) Despite section 28 of the Federal Courts Act, the Federal Court has exclusive original jurisdiction to hear and determine an application for judicial review of a determination made under this section by the Commission.
Marginal note:Burden of proof
129 If the facts of a violation are reviewed, the person who issued the notice of violation must establish, on a balance of probabilities, that the person named in it committed the violation identified in it.
130 If a person pays the penalty set out in a notice of violation, the person is considered to have committed the violation and proceedings in respect of it are ended.
Marginal note:Failure to act
131 A person that neither pays the penalty imposed under this Act nor requests a review within the period referred to in section 125 is considered to have committed the violation and is liable to the penalty.
Recovery of Penalties
Marginal note:Debts to Her Majesty
Marginal note:Limitation period or prescription
(2) Proceedings to recover the debt may be instituted no later than the fifth anniversary of the day on which the debt becomes payable.
Marginal note:Registration in Federal Court
(2) Registration in the Federal Court or in any other court of competent jurisdiction of a certificate of non-payment issued under subsection (1) has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.
Marginal note:Admissibility of documents
134 In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 120(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.
135 The Regulator may make public the nature of a violation, the name of the person who committed it and the amount of the penalty.
Polluter Pays Principle
136 The purpose of sections 137 to 142 is to reinforce the “polluter pays” principle by, among other things, imposing financial requirements on any company that is authorized under this Act to construct or operate a pipeline.
Marginal note:Recovery of loss, damage, costs, expenses
137 (1) If an unintended or uncontrolled release from a pipeline of oil, gas or any other commodity occurs, all persons to whose fault or negligence the release is attributable or who are by law responsible for others to whose fault or negligence the release is attributable are jointly and severally, or solidarily, liable for
(a) all actual loss or damage incurred by any person as a result of the release or as a result of any action or measure taken in relation to the release;
(b) the costs and expenses reasonably incurred by Her Majesty in right of Canada or a province, any Indigenous governing body or any other person in taking any action or measure in relation to the release; and
(c) all loss of non-use value relating to a public resource that is affected by the release or by any action or measure taken in relation to the release.
Marginal note:Contribution based on degree of fault
(2) The persons who are at fault or negligent or who are by law responsible for persons who are at fault or negligent are liable to make contributions to each other or to indemnify each other in the degree to which they are respectively at fault or negligent.
Marginal note:Vicarious liability
(3) The company that is authorized under this Act to construct or operate the pipeline from which the release occurred is jointly and severally, or solidarily, liable with any contractor — to whose fault or negligence the release is attributable — that performs work for the company for the actual loss or damage, the costs and expenses and the loss of non-use value, described in paragraphs (1)(a) to (c).
Marginal note:Absolute liability
(4) If an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline occurs, the company that is authorized under this Act to construct or operate that pipeline is liable, without proof of fault or negligence, up to the applicable limit of liability that is set out in subsection (5) for the actual loss or damage, the costs and expenses and the loss of non-use value, described in paragraphs (1)(a) to (c).
Marginal note:Limits of liability
(5) For the purposes of subsection (4), the limits of liability are,
(a) in respect of a company that is authorized under this Act to construct or operate one or more pipelines that individually or in the aggregate have the capacity to transport at least 250,000 barrels of oil per day, $1 billion or, if a greater amount is prescribed by the regulations, that amount; and
(b) in respect of a company that is authorized under this Act to construct or operate any other pipeline, the amount prescribed by the regulations.
Marginal note:Regulations — limits of liability
(6) The Governor in Council may, by regulation, on the Minister’s recommendation,
Marginal note:Liability under another law — subsection (4)
(7) If a company is liable under subsection (4) with respect to a release and it is also liable under any other Act, without proof of fault or negligence, for that release, the company is liable up to the greater of the limit of liability referred to in subsection (5) that applies to it and the limit up to which it is liable under the other Act. If the other Act does not set out a limit of liability, the limits referred to in subsection (5) do not apply.
Marginal note:Costs and expenses not recoverable under Fisheries Act
Marginal note:Proceedings — loss of non-use value
(9) Only Her Majesty in right of Canada or a province may institute proceedings to recover a loss of non-use value described in paragraph (1)(c).
(10) All claims under this section may be sued for and recovered in any court of competent jurisdiction in Canada. Claims in favour of persons incurring actual loss or damage described in paragraph (1)(a) are to be distributed pro rata and rank in priority over claims for costs and expenses described in paragraph (1)(b), and the claims for costs and expenses rank in priority over claims to recover a loss of non-use value described in paragraph (1)(c).
(11) Subject to subsections (8) and (9), nothing in this section suspends or limits
(a) any legal liability or remedy for an act or omission by reason only that the act or omission is an offence under this Act or gives rise to liability under this section;
(b) any recourse, indemnity or relief available at law to a person who is liable under this section against any other person; or
(c) the operation of any applicable law or rule of law that is consistent with this section.
Marginal note:Limitation period or prescription
(12) Proceedings in respect of claims under this section may be instituted no later than the third anniversary of the day on which the loss, damage or costs and expenses were incurred but in no case after the sixth anniversary of the day on which the release occurred.
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