Fisheries Act

Marginal note:Civil liability to Her Majesty

• 42 (1) Where there occurs a deposit of a deleterious substance in water frequented by fish that is not authorized under section 36 or a serious and imminent danger thereof by reason of any condition, the persons who at any material time

  • (a) own the deleterious substance or have the charge, management or control thereof, or

  • (b) are persons other than those described in paragraph (a) who cause or contribute to the causation of the deposit or danger thereof,

  are, subject to subsection (4) in the case of the persons referred to in paragraph (a) and to the extent determined according to their respective degrees of fault or negligence in the case of the persons referred to in paragraph (b), jointly and severally liable for all costs and expenses incurred by Her Majesty in right of Canada or a province, to the extent that those costs and expenses can be established to have been reasonably incurred in the circumstances, of and incidental to the taking of any measures to prevent any such deposit or condition or to counteract, mitigate or remedy any adverse effects that result or may reasonably be expected to result therefrom.

• Marginal note:Recovery

  (2) All the costs and expenses referred to in subsection (1) are recoverable by Her Majesty in right of Canada or a province with costs in proceedings brought or taken therefor in the name of Her Majesty in any such right in any court of competent jurisdiction.

• Marginal note:Liability to fishermen

  (3) Where, as a result of a deposit that is not authorized under section 36, a deleterious substance enters water frequented by fish, the persons described in paragraphs (1)(a) and (b) are, subject to subsection (4) in the case of the persons described in paragraph (1)(a) and to the extent determined according to their respective degrees of fault or negligence in the case of the persons described in paragraph (1)(b), jointly and severally liable for all loss of income incurred by any licensed commercial fisherman, to the extent that the loss can be established to have been incurred as a result of the deposit or of a prohibition to fish resulting therefrom, and all such loss is recoverable with costs in proceedings brought or taken therefor in any court of competent jurisdiction.

• Marginal note:Defences to liability

  (4) The liability of any person described in paragraph (1)(a) is absolute and does not depend on proof of fault or negligence but no such person is liable for any costs and expenses pursuant to subsection (1) or loss of income pursuant to subsection (3) if he establishes that the occurrence giving rise to the liability was wholly caused by

  • (a) an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or

  • (b) an act or omission with intent to cause damage by a person other than a person for whose wrongful act or omission he is by law responsible.

• Marginal note:Exception

  (5) Nothing in this section limits or restricts any right of recourse that any person who is liable pursuant to this section may have against any other person.

• Marginal note:Limitation

  (6) No proceedings may be commenced under subsections (1) to (3) at any time later than two years after the occurrence to which the proceedings relate could reasonably be expected to have become known to Her Majesty in right of Canada or a province or to any licensed commercial fisherman, as the case may be.

• Marginal note:Exception

  (7) Subsections (1) to (3) do not apply in respect of any deposit of a deleterious substance that, within the meaning of Part 8 or 9 of the Canada Shipping Act, 2001, constitutes a discharge of a pollutant caused by or otherwise attributable to a vessel.

• Marginal note:Other civil remedies not affected

  (8) No civil remedy for any act or omission is suspended or affected by reason only that the act or omission is authorized under this Act, is an offence under this Act or gives rise to civil liability under this Act.