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

Marginal note:Pooled fund

• 139 (1) Subject to subsection (2), a company may meet all or a portion of its financial requirements under subsection 138(1) by participating in a pooled fund that is established by companies authorized under this Act to construct or operate a pipeline, that meets the requirements established by the regulations and from which the Regulator may withdraw any amount under subsection 141(6).

• Marginal note:Difference

  (2) If a company meets only a portion of its financial requirements by participating in a pooled fund and the amount of funds in the pooled fund to which it has access — in the event that there is an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline that the company is authorized under this Act to construct or operate — is less than the amount of financial resources referred to in subsection 138(1), the company must maintain an amount equal to the difference between those amounts.

• Marginal note:Regulations

  (3) The Governor in Council may, on the Minister’s recommendation, make regulations respecting a pooled fund referred to in subsection (1), including regulations specifying

  • (a) the minimum amount of the pooled fund and the minimum amount of the pooled fund that must be readily accessible;

  • (b) any condition that a company must meet in order to participate in the pooled fund, including the minimum amount that a company must contribute to the pooled fund;

  • (c) the maximum amount that a company may withdraw from the pooled fund; and

  • (d) the maximum portion of a company’s financial requirements that may be met by participating in the pooled fund.

Reimbursement by Company

Marginal note:Reimbursement —  measures taken by government institution

140 If an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline occurs, the Commission may, by order, direct the company that is authorized under this Act to construct or operate that pipeline to reimburse any federal, provincial or municipal government institution, any Indigenous governing body or any person for the costs and expenses that the Commission considers reasonable that they incurred in taking any reasonable action or measure in relation to the release, even if the costs and expenses are more than the amount of the limit of liability referred to in subsection 137(5) that applies to that company.

Designated Company

Marginal note:Designation

• 141 (1) The Governor in Council may, on the Minister’s recommendation, designate any company that is authorized under this Act to construct or operate a pipeline from which an unintended or uncontrolled release of oil, gas or any other commodity has occurred if

  • (a) the Governor in Council considers that the company does not have or is not likely to have the financial resources necessary to pay

    • (i) the costs and expenses incurred, or to be incurred, in taking any action or measure in relation to the release, and

    • (ii) the compensation that might be awarded for compensable damage caused by the release; or

  • (b) the company does not comply with an order of the Commission with respect to any action or measure to be taken in relation to the release.

• Marginal note:Measures to be taken

  (2) If the Governor in Council designates a company under subsection (1), the Regulator or any of its officers or employees — or class of officers or employees — that the Regulator authorizes may take any action or measure that they consider necessary in relation to the release or they may authorize a third party to take any action or measure.

• Marginal note:No liability

  (3) No action lies against the Regulator or an officer or employee of the Regulator or against a servant of the Crown, as those terms are defined in section 2 of the Crown Liability and Proceedings Act, in respect of any act or omission committed in taking any action or measure in relation to the release.

• Marginal note:Third party liability

  (4) A third party that is authorized under subsection (2) to take any action or measure referred to in that subsection is not liable in respect of any act or omission committed in good faith in taking the action or measure.

• Marginal note:Reimbursement —  measures taken by government institution

  (5) If the Governor in Council designates a company under subsection (1), the Regulator may reimburse any federal, provincial or municipal government institution, any Indigenous governing body or any person the costs and expenses that the Regulator considers reasonable that they incurred in taking any reasonable action or measure in relation to the release.

• Marginal note:Withdrawal from pooled fund

  (6) If the Governor in Council designates a company under subsection (1) and that company participates in a pooled fund described in subsection 139(1), the Regulator may withdraw any amount from the pooled fund that is necessary to pay the costs and expenses incurred in taking any action or measure under subsection (2) and to reimburse the costs and expenses referred to in subsection (5).

Marginal note:Regulations imposing fees, etc.

• 142 (1) Subject to the Treasury Board’s approval, the Regulator must, for the purposes of recovering the amounts paid out of the Consolidated Revenue Fund under subsection 171(1), even if those amounts are more than the amount of the limit of liability referred to in subsection 137(5) that applies to a designated company, make regulations

  • (a) imposing fees, levies or charges on a designated company and, if the amount recovered from the designated company is not sufficient to recover the amounts paid out, imposing fees, levies or charges on companies that are authorized under this Act to construct or operate pipelines that transport the same commodity or a commodity of the same class as the commodity that was released from a pipeline constructed or operated by the designated company; and

  • (b) prescribing the manner of calculating the fees, levies and charges and their payment to the Regulator.

• Marginal note:Interest on late payments

  (2) A regulation made under subsection (1) may specify the rate of interest or the manner of calculating the rate of interest payable by a company either individually or as a member of a class of companies on any fee, levy or charge not paid by the company on or before the date it is due and the time from which interest is payable.

• Marginal note:Debt due to Her Majesty

  (3) Fees, levies or charges imposed under this section and any interest payable on them constitute a debt that is due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction.

Pipeline Claims Tribunal

Establishment

Marginal note:Establishment of Tribunal

• 143 (1) The Governor in Council may, by order, after a designation is made under subsection 141(1), establish a pipeline claims tribunal whose purpose is to examine and adjudicate, as expeditiously as the circumstances and considerations of fairness permit, the claims for compensation made under this Act in relation to the release that occurred from the designated company’s pipeline and specify the location of its head office.

• Marginal note:Reasons

  (2) However, the Governor in Council may establish a pipeline claims tribunal only if, having regard to the extent of the compensable damage caused by the release, the estimated cost of paying compensation in respect of that damage and the advantages of having claims dealt with by an administrative tribunal, the Governor in Council considers it in the public interest to do so.

• Marginal note:Claims treated equitably

  (3) A Tribunal must exercise its powers and perform its duties and functions with respect to claims for compensation in an equitable manner, without discrimination on the basis of nationality or residence.

Marginal note:Jurisdiction of courts

144 For greater certainty, nothing in sections 143 and 145 to 173 is to be construed as restricting the jurisdiction of a court of competent jurisdiction with respect to the release referred to in subsection 143(1).

Marginal note:Public notice

145 Immediately after a Tribunal is established, the Regulator must notify the public, in a manner that the Tribunal considers appropriate, of the Tribunal’s purpose and the manner in which to obtain information on making a claim for compensation and must publish in the Canada Gazette a notice setting out that purpose and the manner in which to obtain that information.

Marginal note:Members of Tribunal

• 146 (1) A Tribunal is to have at least three members, each of whom is to be appointed by the Governor in Council, on the Minister’s recommendation, to hold office for a term of not more than five years.

• Marginal note:Members’ qualifications

  (2) The members of the Tribunal are to be appointed from among persons who are retired judges of a superior court or members of at least 10 years standing at either the bar of a province or the Chambre des notaires du Québec.

• Marginal note:Replacing member

  (3) If a member is absent or becomes incapacitated, resigns or dies, the Governor in Council may appoint a replacement for that member.

• Marginal note:Remuneration

  (4) The Regulator must pay the members the remuneration and expenses that are fixed by the Governor in Council.

Marginal note:Tenure

• 147 (1) Each member of a Tribunal is to hold office during good behaviour, but may be removed by the Governor in Council for cause.

• Marginal note:Termination of Tribunal

  (2) The Governor in Council may terminate the appointment of the members of the Tribunal if the Governor in Council is satisfied that the Tribunal has no work to carry out.

Marginal note:Immunity

148 No action lies against any member of a Tribunal for anything done or omitted to be done by the member in the exercise or purported exercise of a power or in the performance or purported performance of a duty or function of the Tribunal.

Chairperson and Staff

Marginal note:Chairperson

• 149 (1) The Governor in Council must, on the Minister’s recommendation, designate one of the members of a Tribunal to be the Chairperson of the Tribunal.

• Marginal note:Chairperson’s powers, duties and functions

  (2) The Chairperson apportions work among the members of the Tribunal and, if he or she establishes a panel, assigns members to the panel and designates a member to preside over it. The Chairperson also has supervision over and direction of the work of the Tribunal’s staff.

Marginal note:Staff

150 A Tribunal may employ the staff that it considers necessary for the proper exercise of its powers and performance of its duties and functions, prescribe their duties and, subject to any regulations, the conditions of their employment and, with the Treasury Board’s approval, fix their remuneration.

Marginal note:Technical or specialized knowledge

151 A Tribunal may engage, on a temporary basis, the services of counsel or notaries and other persons having technical or specialized knowledge to assist it in its work, prescribe their duties and the conditions of their employment and, with the Treasury Board’s approval, fix their remuneration and expenses.

Marginal note:Payment by Regulator

152 The Regulator must pay the remuneration and expenses referred to in sections 150 and 151.

Marginal note:Staff and facilities

153 The Regulator must provide a Tribunal with any professional, technical, secretarial, clerical and other assistance and any facilities and supplies that the Regulator considers necessary to enable the Tribunal to exercise its powers and perform its duties and functions.

Tribunal’s Powers, Duties and Functions

Marginal note:Hearings

154 A Tribunal must conduct its hearings in Canada on the dates and at the times and locations that it considers appropriate.

Marginal note:Powers

• 155 (1) A Tribunal has all the powers, rights and privileges vested in a superior court with respect to any matters within its jurisdiction, including the attendance, swearing and examination of witnesses, the production and inspection of documents and the enforcement of its orders.

• Marginal note:Evidence at hearings

  (2) The Tribunal is not, in the hearing of any matter, bound by the legal rules of evidence. However, 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:Examinations

156 For the purposes of adjudicating a claim for compensation or an application for reconsideration, a Tribunal may require a claimant or applicant to undergo medical or other examinations that the Tribunal considers reasonably necessary.

Marginal note:Frivolous or vexatious claims

157 A Tribunal may refuse to hear any claim for compensation or application for reconsideration that it considers to be frivolous or vexatious.