Canadian Energy Regulator Act (S.C. 2019, c. 28, s. 10)

Marginal note:Measures to meet time limit

• 42 (1) If the Lead Commissioner is satisfied that a time limit imposed under any of sections 183, 214 and 262 is not likely to be met in respect of an application, the Lead Commissioner may take any measure that he or she considers appropriate to ensure that the time limit is met, including

  • (a) removing any or all commissioners from a panel authorized to deal with the application;

  • (b) authorizing one or more commissioners to deal with the application; and

  • (c) increasing or decreasing the number of commissioners dealing with the application.

• Marginal note:Clarification

  (2) For greater certainty, the power referred to in subsection (1) includes the power to designate a single member, including the Lead Commissioner, as the sole commissioner who is authorized to deal with the application.

Marginal note:Inconsistencies

43 In the event of any inconsistency between a instruction given under section 41 or a measure taken under subsection 42(1) and any rule made under section 35, the instruction or measure prevails to the extent of the inconsistency.

Marginal note:Non-application

44 For greater certainty, sections 41 and 42 do not apply to an application with respect to a designated project, as defined in section 2 of the Impact Assessment Act, that is subject to an impact assessment under that Act.

Authorizations, Panels and Hearings

Marginal note:Authorization — powers, duties and functions

• 45 (1) The Lead Commissioner may authorize one or more commissioners, either jointly or severally, to exercise any of the powers of the Commission or to perform any of its duties and functions under this Act, except those under sections 95, 183, 184, 186, 195 to 197, subsection 211(3), sections 212 to 214, 231 to 234, 238 to 240, 248, 257, 262, 274, 285 to 287, 289 and under Parts 7 and 8.

• Marginal note:Presumption

  (2) A power exercised or a duty or function performed under the authorization is considered to have been exercised or performed by the Commission.

Marginal note:Authorization — report

• 46 (1) The Lead Commissioner may authorize one or more of the commissioners to report to the Commission on any matter related to the work of the Commission or any application or proceeding before it. For the purpose of making a report related to an application or proceeding before the Commission, the authorized commissioners have all the powers of the Commission with respect to taking evidence or acquiring information.

• Marginal note:Not a quorum

  (2) Despite section 27 of this Act and paragraph 22(2)(a) of the Interpretation Act, three or more commissioners authorized to report in accordance with subsection (1) do not constitute a quorum of the Commission.

• Marginal note:Use of report

  (3) A report to the Commission under subsection (1) may be adopted as a decision or order of the Commission or be dealt with as the Commission considers appropriate.

Marginal note:Replacement of commissioner during hearing

• 47 (1) If a commissioner who is conducting a hearing in accordance with an authorization under section 45 or 46 is unable to act or resigns during the hearing, the Lead Commissioner may authorize another commissioner to continue the hearing and to make the decision or report.

• Marginal note:Replacement of commissioner before decision or report

  (2) If a commissioner who is conducting a hearing in accordance with an authorization under section 45 or 46 is unable to act or resigns after the conclusion of the hearing but before the decision or report is made, the Lead Commissioner may authorize another commissioner to examine all the evidence presented at the hearing and to make the decision or report on the basis of that evidence.

Marginal note:Replacement of panel member during hearing

• 48 (1) If a panel is conducting a hearing and a commissioner on the panel is unable to act or resigns during the hearing, the Lead Commissioner may authorize another commissioner to replace that commissioner for the rest of the hearing and to participate in the decision or, as applicable, finalize the report required under subsection 183(1).

• Marginal note:Replacement of panel member before decision or report

  (2) If a panel is conducting a hearing and a commissioner on the panel is unable to act or resigns after the conclusion of the hearing but before the decision is made or, as applicable, the report required under subsection 183(1) is finalized, the remaining commissioners may — if unanimous — make the decision or finalize the report as if the commissioner were present and participating.

Marginal note:Lead Commissioner’s powers

49 Nothing in section 47 or subsection 48(1) precludes the Lead Commissioner from taking a measure under subsection 42(1).

Marginal note:Change in composition of panel

50 If the composition of a panel changes in accordance with subsection 42(1) or 48(1),

• (a) evidence and representations received by the Commission in relation to the matter being dealt with by the panel before the change are considered to have been received after the change; and

• (b) the Commission is bound by every decision made by the Commission in relation to the matter being dealt with by the panel before the change unless the Commission elects to review, vary or rescind it.

Marginal note:Authorization to continue

51 If a commissioner resigns or their term expires, the Lead Commissioner may, on any conditions he or she specifies, authorize the former commissioner to continue to exercise powers and perform duties and functions as a commissioner in a matter to which they were assigned immediately before resigning or the expiry of their term until a final decision or recommendation in the matter is made, and the former commissioner is considered to be a commissioner for the purposes of this Act.

Marginal note:Public hearings

• 52 (1) A hearing before the Commission with respect to the issuance, suspension or revocation of a certificate under Part 3 or 4 must be public.

• Marginal note:Non-application

  (2) Subsection (1) does not apply to a hearing with respect to the suspension or revocation of either of the following certificates if the holder applies for or consents to the suspension or revocation:

  • (a) a certificate issued in respect of an international or interprovincial power line, whether or not the power line has been brought into commercial operation under the certificate; or

  • (b) a certificate issued in respect of a pipeline that has not been brought into commercial operation under the certificate.

• Marginal note:Other matters

  (3) The Commission may hold a public hearing in respect of any other matter if the Commission considers it appropriate to do so and shall make public its reasons for holding the hearing.

• Marginal note:For greater certainty

  (4) For greater certainty, subsection (1) does not affect the operation of subsection 241(3).

Recommendations

Marginal note:Reasons

• 53 (1) The Commission must issue written reasons for each recommendation it makes to the Governor in Council or the Minister.

• Marginal note:Public availability

  (2) The Regulator must make the recommendations, and the reasons for them, publicly available.

Exercise of Commission’s Powers and Performance of Its Duties and Functions by Designated Officers

Marginal note:Regulations

54 The Governor in Council may make regulations that specify

• (a) powers, duties and functions of the Commission that are technical or administrative in nature and may be exercised or performed by designated officers;

• (b) any circumstances in which those powers are to be exercised and those duties and functions are to be performed only by designated officers; and

• (c) the procedures and practices that apply to the exercise of those powers and the performance of those duties and functions by designated officers.

Marginal note:Apportionment of work

55 The Chief Executive Officer is responsible for apportioning among the designated officers any work related to a power, duty or function that is specified in a regulation made under section 54.

Rights and Interests of the Indigenous Peoples of Canada

Marginal note:Duty to consider — Commission

• 56 (1) When making a decision, an order or a recommendation under this Act, the Commission must consider any adverse effects that the decision, order or recommendation may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.

• Marginal note:Duty to consider — designated officers

  (2) When making a decision or an order under this Act, a designated officer must consider any adverse effects that the decision or order may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982.

Marginal note:Advisory committee

• 57 (1) The Regulator must establish an advisory committee for the purpose of enhancing the involvement, under Part 2, of the Indigenous peoples of Canada and Indigenous organizations in respect of pipelines, power lines and offshore renewable energy projects as well as abandoned pipelines.

• Marginal note:Membership

  (2) The membership of the advisory committee must include at least

  • (a) one person recommended by an Indigenous organization that represents the interests of First Nations;

  • (b) one person recommended by an Indigenous organization that represents the interests of the Inuit; and

  • (c) one person recommended by an Indigenous organization that represents the interests of the Métis.

Marginal note:Confidentiality — Indigenous knowledge

• 58 (1) Any Indigenous knowledge that is provided in confidence to the Regulator under this Act or any other Act of Parliament that confers powers, duties or functions on the Regulator is confidential and must not knowingly be, or be permitted to be, disclosed without written consent.

• Marginal note:Exception

  (2) Despite subsection (1), the Indigenous knowledge referred to in that subsection may be disclosed if

  • (a) it is publicly available;

  • (b) the disclosure is necessary for the purposes of procedural fairness and natural justice or for use in legal proceedings; or

  • (c) the disclosure is authorized in the circumstances set out in the regulations made under section 59.

• Marginal note:Consultation

  (2.1) Before disclosing Indigenous knowledge under paragraph 2(b) for the purposes of procedural fairness and natural justice, the Regulator must consult the person or entity who provided the Indigenous knowledge and the person or entity to whom it is proposed to be disclosed about the scope of the proposed disclosure and potential conditions under subsection (3).

• Marginal note:Further disclosure

  (3) The Regulator may, having regard to the consultation referred to in subsection (2.1), impose conditions with respect to the disclosure of Indigenous knowledge by any person or entity to whom it is disclosed under paragraph (2)(b) for the purposes of procedural fairness and natural justice.

• Marginal note:Duty to comply

  (4) The person or entity referred to in subsection (3) must comply with any conditions imposed by the Regulator under that subsection.

• Marginal note:Protection from civil proceeding or prosecution

  (5) Despite any other Act of Parliament, no civil or criminal proceedings lie against the Regulator or the Minister — or any person acting on behalf of, or under the direction of, either of them — and no proceedings lie against the Crown or the Regulator, for the disclosure in good faith of any Indigenous knowledge under this Act or any other Act of Parliament that confers powers, duties or functions on the Regulator or for any consequences that flow from that disclosure.

Marginal note:Regulations

59 The Governor in Council may make regulations prescribing the circumstances in which Indigenous knowledge that is provided to the Regulator under this Act in confidence may be disclosed without written consent.

Confidentiality of Information

Marginal note:Confidentiality

60 The Commission or a designated officer may take any measures and make any order that the Commission or designated officer considers necessary to ensure the confidentiality of any information likely to be disclosed in any proceedings under this Act if the Commission or designated officer is satisfied that

• (a) disclosure of the information could reasonably be expected to result in a material loss or gain to a person directly affected by the proceedings, or could reasonably be expected to prejudice the person’s competitive position;

• (b) the information is financial, commercial, scientific or technical information that is confidential information provided to the Regulator and

  • (i) the information has been consistently treated as confidential information by a person directly affected by the proceedings, and

  • (ii) the Commission or designated officer considers that the person’s interest in confidentiality outweighs the public interest in disclosure of the proceedings; or

• (c) there is a real and substantial risk that disclosure of the information will compromise the safety and well-being of persons or cause harm to property or the environment.