Short Title

Marginal note:Short title

1 This Act may be cited as the National Energy Board Act.

Interpretation

Marginal note:Definitions

2 In this Act,

abandoned pipeline

abandoned pipeline means a pipeline the operation of which has been abandoned with the leave of the Board as required by paragraph 74(1)(d) and that remains in place; (pipeline abandonné)

Aboriginal governing body

Aboriginal governing body means a council, government or other entity authorized to act on behalf of

• (a) a band as defined in subsection 2(1) of the Indian Act, or

• (b) a First Nation, an Aboriginal people or any Aboriginal organization that is a party to a land claims agreement or any other treaty, a self-government agreement or a settlement agreement; (corps dirigeant autochtone)

Arbitration Committee

Arbitration Committee means an Arbitration Committee appointed pursuant to section 91; (comité d’arbitrage)

Board

Board means the National Energy Board established by section 3; (Office)

certificate

certificate means a certificate of public convenience and necessity issued under Part III or III.1 except that certificate means

• (a) in Part III, a certificate issued in respect of a pipeline, and

• (b) in Part III.1, a certificate issued in respect of an international or interprovincial power line; (certificat)

company

company includes

• (a) a person having authority under a Special Act to construct or operate a pipeline, and

• (b) a body corporate incorporated or continued under the Canada Business Corporations Act and not discontinued under that Act; (compagnie)

compensable damage

compensable damage means the costs, losses and damages for which the Tribunal may award compensation; (dommages indemnisables)

export

export means, with reference to

• (a) electricity, to send from Canada by a line of wire or other conductor electricity produced in Canada,

• (b) oil,

  • (i) to export within the meaning of any provision of the Energy Administration Act that defines export for the purposes of any charge imposed under that Act in relation to fuel for use by an aircraft or a vessel, or

  • (ii) to send or take by any means

    • (A) from Canada, or

    • (B) to a place outside Canada from any area of land not within a province that belongs to Her Majesty in right of Canada or in respect of which Her Majesty in right of Canada has the right to dispose of or exploit the natural resources and that is situated in submarine areas in the internal waters of Canada, the territorial sea of Canada or the continental shelf of Canada, or

• (c) gas, to effect any one of the operations referred to in subparagraph (b)(ii); (exportation)

gas

gas means

• (a) any hydrocarbon or mixture of hydrocarbons that, at a temperature of 15°C and a pressure of 101.325 kPa, is in a gaseous state, or

• (b) any substance designated as a gas product by regulations made under section 130; (gaz)

ground disturbance

ground disturbance does not include a ground disturbance caused by

• (a) any activity that is specified in the orders or regulations made under subsection 112(5),

• (b) cultivation to a depth of less than 45 cm below the surface of the ground, or

• (c) any other activity to a depth of less than 30 cm and that does not result in a reduction of the earth cover over the pipeline to a depth that is less than the cover provided when the pipeline was constructed; (remuement du sol)

hydrocarbon

hydrocarbon does not include coal; (hydrocarbure)

import

import means, with reference to gas or oil, to bring into Canada through pipelines, by railway tank car, by tank truck or by tanker; (importation)

international power line

international power line means facilities constructed or operated for the purpose of transmitting electricity from or to a place in Canada to or from a place outside Canada; (ligne internationale de transport d’électricité ou ligne internationale)

interprovincial power line

interprovincial power line means facilities constructed or operated for the purpose of transmitting electricity from a place in a province to a place in Canada outside that province; (ligne interprovinciale de transport d’électricité ou ligne interprovinciale)

lands

lands means lands the acquiring, taking or using of which is authorized by this Act or a Special Act, and includes real property and any interest or right in real property or land and, in the Province of Quebec, any immovable, any right in an immovable and the right of a lessee in respect of any immovable. Those interests and rights may be in, to, on, under, over or in respect of those lands; (terrains)

licence

licence means a licence issued under Part VI or VII except that licence means

• (a) in Division I of Part VI, a licence for the exportation or importation of oil or gas,

• (b) in Division II of Part VI, a licence for the exportation of electricity, and

• (c) in Part VII, a licence permitting the movement of designated oil or gas out of a designated province or area; (licence)

member

member means a member of the Board; (membre)

Minister

Minister means such member of the Queen’s Privy Council for Canada as is designated by the Governor in Council as the Minister for the purposes of this Act; (ministre)

navigable water

navigable water has the same meaning as in section 2 of the Navigation Protection Act; (eaux navigables)

negotiator

negotiator means a negotiator appointed pursuant to subsection 88(2); (négociateur)

oil

oil means

• (a) any hydrocarbon or mixture of hydrocarbons other than gas, or

• (b) any substance designated as an oil product by regulations made under section 130; (pétrole)

penalty

penalty means an administrative monetary penalty imposed under this Act for a violation; (pénalité)

permit

permit means a permit issued under section 41 or Part III.1 or VI; (permis)

pipeline

pipeline means a line that is used or to be used for the transmission of oil, gas or any other commodity and that connects a province with any other province or provinces or extends beyond the limits of a province or the offshore area as defined in section 123, and includes all branches, extensions, tanks, reservoirs, storage facilities, pumps, racks, compressors, loading facilities, interstation systems of communication by telephone, telegraph or radio and real and personal property, or immovable and movable, and works connected to them, but does not include a sewer or water pipeline that is used or proposed to be used solely for municipal purposes; (pipeline)

power

power[Repealed, 1990, c. 7, s. 1]

registrar of deeds

registrar of deeds includes the registrar of land titles or other officer with whom title to land is registered; (directeur de l’Enregistrement)

Secretary

Secretary means the Secretary of the Board; (secrétaire)

Special Act

Special Act means

• (a) an Act of Parliament that authorizes a person named in the Act to construct or operate a pipeline or that is enacted with special reference to a pipeline that a person is by such an Act authorized to construct or operate, and

• (b) letters patent issued under section 5.1 or 5.4 of the Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970, except for the purpose of paragraph 115(b) of this Act; (loi spéciale)

toll

toll includes any toll, rate, charge or allowance charged or made

• (a) for the shipment, transportation, transmission, care, handling or delivery of hydrocarbons or of another commodity that is transmitted through a pipeline, or for storage or demurrage or the like,

• (b) for the provision of a pipeline when the pipeline is available and ready to provide for the transmission of oil or gas, and

• (c) in respect of the purchase and sale of gas that is the property of a company and that is transmitted by the company through its pipeline, excluding the cost to the company of the gas at the point where it enters the pipeline; (droit)

Tribunal

Tribunal means a pipeline claims tribunal established under subsection 48.18(1). (Tribunal)

Application

Marginal note:Binding on Her Majesty

2.1 This Act is binding on Her Majesty in right of Canada or a province.

PART INational Energy Board

Establishment of the Board

Marginal note:Board established

• 3 (1) There is hereby established a Board, to be called the National Energy Board, consisting of not more than nine members to be appointed by the Governor in Council.

• Marginal note:Tenure of members

  (2) Subject to subsection (3), each member of the Board shall be appointed to hold office during good behaviour for a period of seven years, but may be removed at any time by the Governor in Council on address of the Senate and House of Commons.

• Marginal note:Reappointment

  (3) A member appointed under subsection (2) is eligible to be reappointed to hold office during good behaviour for any term of seven years or less.

• Marginal note:Eligibility

  (4) A person is not eligible to be appointed or to continue as a member of the Board if that person is not a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or is, as owner, shareholder, director, officer, partner or otherwise, engaged in the business of producing, selling, buying, transmitting, exporting, importing or otherwise dealing in hydrocarbons or electricity or holds any bond, debenture or other security of a corporation engaged in any such business.

• Marginal note:Residence and other employment

  (5) Each member, other than a member appointed under subsection 4(1), shall, during his term of office,

  • (a) reside in, or within a reasonable commuting distance of, Calgary, Alberta or at such other place in Canada as the Governor in Council may approve; and

  • (b) devote the whole of his time to the performance of his duties under this Act, and shall not accept or hold any office or employment inconsistent with his duties and functions under this Act.

Marginal note:Temporary members

• 4 (1) In addition to the number of members that may be appointed under subsection 3(1), the Governor in Council may, notwithstanding subsection 3(2), appoint temporary members of the Board on such terms and conditions as the Governor in Council may prescribe and any temporary member so appointed shall carry out such duties as may be assigned to that member by the Chairperson of the Board.

• (2) [Repealed, 2012, c. 19, s. 70]

• Marginal note:Temporary members, other employment

  (3) A member appointed under subsection (1) shall not, during his term of office, accept or hold any office or employment inconsistent with the member’s duties under this Act.

Marginal note:Remuneration

• 5 (1) Each member, other than a member appointed under subsection 4(1), shall be paid such remuneration for the services of that member as the Governor in Council may from time to time determine.

• Marginal note:Idem

  (2) Each member appointed under subsection 4(1) shall be paid such remuneration for the services of that member as the Governor in Council may from time to time determine.

• Marginal note:Expenses

  (3) Each member is entitled to be paid reasonable travel and other expenses incurred in the performance of his duties while away from his ordinary place of residence.

Executive Officers

Marginal note:Chairman and Vice-Chairman

• 6 (1) The Governor in Council shall designate one of the members to be Chairperson of the Board and another of the members to be Vice-chairperson of the Board.

• Marginal note:Chairperson’s duties

  (2) The Chairperson is the chief executive officer of the Board. The Chairperson apportions work among the members, decides whether the Board sits in a panel, and assigns members to panels and a member to preside over each panel. The Chairperson also has supervision over and direction of the work of the Board’s staff.

• Marginal note:Directives regarding timeliness

  (2.1) To ensure that an application before the Board is dealt with in a timely manner, the Chairperson may issue directives to the members authorized to deal with the application regarding the manner in which they are to do so.

• Marginal note:Measures to meet time limit

  (2.2) If the Chairperson is of the opinion that a time limit imposed under any of sections 52, 58 and 58.16 is not likely to be met in respect of an application, the Chairperson may take any measure that the Chairperson considers appropriate to ensure that the time limit is met, including

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

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

  • (c) increasing or decreasing the number of members dealing with the application; and

  • (d) specifying the manner in which section 55.2 is to be applied in respect of the application.

• Marginal note:Clarification

  (2.3) For greater certainty, the power referred to in subsection (2.2) includes the power to designate a single member, including the Chairperson, as the sole member who is authorized to deal with the application.

• Marginal note:Effects of measure

  (2.4) If the composition of the panel dealing with an application is changed as a result of any measure taken under subsection (2.2),

  • (a) evidence and representations received by the Board in relation to the application before the taking of the measure are considered to have been received after the taking of the measure; and

  • (b) the Board is bound by every decision made by the Board in relation to the application before the taking of the measure unless the Board elects to review, vary or rescind it.

• Marginal note:Inconsistencies

  (2.5) In the event of any inconsistency between any directive issued under subsection (2.1) or measure taken under subsection (2.2) and any rule made under section 8, the directive or measure prevails to the extent of the inconsistency.

• Marginal note:Vice-chairperson’s duties

  (3) If the Chairperson is absent or unable to act or if the office is vacant, the Vice-chairperson has all the Chairperson’s powers and functions.

• Marginal note:Acting Chairperson

  (4) The Board may authorize one or more of its members to act as Chairperson for the time being in the event that the Chairperson and Vice-chairperson are absent or unable to act or if the offices are vacant.

• (5) [Repealed, 1990, c. 7, s. 4]

Head Office and Meetings

Marginal note:Head office

• 7 (1) The head office of the Board shall be at Calgary, Alberta.

• Marginal note:Quorum

  (2) Three members constitute a quorum of the Board.

• Marginal note:Exception

  (2.1) Despite subsection (2), if the number of members authorized to deal with an application as a result of any measure taken by the Chairperson under subsection 6(2.2) is less than three, the number of members authorized by the Chairperson to deal with the application constitutes a quorum of the Board.

• Marginal note:Vacancy

  (3) A vacancy in the membership of the Board does not impair the right of the remaining members to act.

• Marginal note:Time and place of sittings

  (4) The Board may sit at such times and places as it considers necessary or desirable for the proper conduct of its business.

Rules

Marginal note:Rules

8 The Board may make rules respecting

• (a) the sittings of the Board;

• (b) the procedure for making applications, representations and complaints to the Board and the conduct of hearings before the Board, and generally the manner of conducting any business before the Board; and

• (c) [Repealed, 2012, c. 19, s. 73]

• (d) generally, the carrying on of the work of the Board, the management of its internal affairs and the duties of its officers and employees.

Staff

Marginal note:Secretary and other officers and employees

• 9 (1) The Secretary and the other officers and employees necessary for the proper conduct of the business of the Board shall be appointed in the manner authorized by law.

• Marginal note:Superannuation

  (2) For the purposes of the Public Service Superannuation Act, the members and Secretary of the Board and the officers and employees appointed as provided in subsection (1) shall be deemed to be persons employed in the public service.

• Marginal note:Exception

  (3) Subsection (2) does not apply to a member of the Board appointed under subsection 4(1) unless the member was, immediately before being appointed, a person employed or deemed to be employed in the Public Service.

• (4) [Repealed, 2013, c. 40, s. 200]

• Marginal note:Deemed appointment

  (5) Where a position in the federal public administration is transferred to the Board within ninety days after this subsection comes into force, the incumbent of the position continues in the position in the Board and any person so continuing is deemed to have been appointed in accordance with subsection (1).

• Marginal note:Probation

  (6) Notwithstanding subsection (5) and section 28 of the Public Service Employment Act, no person deemed by that subsection to have been appointed is subject to probation, unless that person was subject to probation immediately before the appointment, in which case that person continues to be subject to probation as if the position had not been transferred.

Marginal note:Experts

10 The Governor in Council may appoint and fix the remuneration of experts or persons having technical or special knowledge to assist the Board in any matter in an advisory capacity.

Powers of the Board

Marginal note:Board a court

• 11 (1) The Board is a court of record.

• Marginal note:Official Seal

  (2) The Board shall have an official seal, which shall be judicially noticed.

• Marginal note:Powers with respect to witnesses, etc.

  (3) The Board has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders, the entry on and inspection of property and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record.

• Marginal note:Expeditious proceedings

  (4) Subject to subsections 6(2.1) and (2.2), all applications and proceedings before the Board are to be dealt with as expeditiously as the circumstances and considerations of fairness permit, but, in any case, within the time limit provided for under this Act, if there is one.

Marginal note:Jurisdiction

• 12 (1) The Board has full and exclusive jurisdiction to inquire into, hear and determine any matter

  • (a) where it appears to the Board that any person has failed to do any act, matter or thing required to be done by this Act or by any regulation, certificate, licence or permit, or any order or direction made by the Board, or that any person has done or is doing any act, matter or thing contrary to or in contravention of this Act, or any such regulation, certificate, licence, permit, order or direction; or

  • (b) where it appears to the Board that the circumstances may require the Board, in the public interest, to make any order or give any direction, leave, sanction or approval that by law it is authorized to make or give, or with respect to any matter, act or thing that by this Act or any such regulation, certificate, licence, permit, order or direction is prohibited, sanctioned or required to be done.

• Marginal note:Inquiry

  (1.1) The Board may inquire into any accident involving a pipeline, abandoned pipeline, international power line or other facility the construction or operation of which is regulated by the Board and may, at the conclusion of the inquiry, make

  • (a) findings as to the cause of the accident or factors contributing to it;

  • (b) recommendations relating to the prevention of future similar accidents; or

  • (c) any decision or order that the Board can make.

• Marginal note:Matters of law and fact

  (2) For the purposes of this Act, the Board has full jurisdiction to hear and determine all matters, whether of law or of fact.

Marginal note:Jurisdiction — Inuvialuit Settlement Region

• 12.1 (1) The Board shall, for a period of 20 years beginning on the day on which this section comes into force, be the regulator — under any law of the Legislature of the Northwest Territories that is made under paragraph 19(1)(a), (b) or (c) of the Northwest Territories Act — in respect of that portion of the Inuvialuit Settlement Region, as defined in section 2 of the Canada Oil and Gas Operations Act, that is situated in the onshore as defined in section 2 of the Northwest Territories Act.

• Marginal note:Successive periods and termination

  (2) The Government of Canada and the Government of the Northwest Territories may agree that the Board shall be the regulator for successive periods of 20 years each; they may also, before the expiry of each successive period, agree to its earlier termination.

Marginal note:Mandatory orders

13 The Board may

• (a) order and require any person to do, forthwith, or within or at any specified time and in any manner prescribed by the Board, any act, matter or thing that such person is or may be required to do under this Act, or any regulation, certificate, licence or permit, or any order or direction made or given under this Act; and

• (b) forbid the doing or continuing of any act, matter or thing that is contrary to this Act or any such regulation, certificate, licence, permit, order or direction.

Marginal note:Authorization regarding Board’s powers, duties and functions

• 14 (1) The Chairperson may authorize one or more members, either jointly or severally, to exercise any of the Board’s powers or to perform any of the Board’s duties and functions under this Act, except those under subsection 45(3), sections 46, 47, 48, 52 to 54, 56, 58, 58.11, 58.14, 58.16, 58.32, 58.35, 58.37 and 129 and under Parts IV, VI, VII and IX.

• Marginal note:Presumption

  (2) Any power exercised or any duty or function performed by a member or members under the authorization is considered to have been exercised or performed by the Board.

Marginal note:Powers of members authorized to report

• 15 (1) The Chairperson may authorize one or more of the members to report to the Board on any question or matter arising in connection with the business of or any application or proceeding before the Board, and the member or members so authorized have all the powers of the Board for the purpose of taking evidence or acquiring the necessary information for the purpose of making the report and the recommendations contained in it as to the decision or order of the Board to be made on the question or matter.

• Marginal note:Not a quorum

  (1.1) Notwithstanding subsection 7(2) of this Act and paragraph 22(2)(a) of the Interpretation Act, three or more members authorized to report to the Board pursuant to subsection (1) do not constitute a quorum of the Board.

• Marginal note:Board to deal with report

  (2) When a report is made to the Board under subsection (1), it may be adopted as the decision or order of the Board or otherwise dealt with as the Board considers advisable.

• Marginal note:Board may act on own motion

  (3) The Board may of its own motion inquire into, hear and determine any matter or thing that under this Act it may inquire into, hear and determine.

Marginal note:Incapacity of single member

• 16 (1) If a member who is conducting a hearing under an authorization under section 14 or 15 becomes incapacitated, resigns or dies during the hearing or after the conclusion of the hearing but before making a decision or report, the Chairperson may authorize another member

  • (a) to continue the hearing and to make a decision or report to the Board, if the incapacity, resignation or death occurs during the hearing; or

  • (b) to examine all the evidence presented at the hearing and to make a decision, or report to the Board, based on the evidence, if the incapacity, resignation or death occurs after the conclusion of the hearing but before a decision is given or a report to the Board is made.

• Marginal note:Incapacity of member of quorum

  (2) If a hearing is being conducted by three members and one member becomes incapacitated, resigns or dies during the hearing or after the conclusion of it but before a decision is given,

  • (a) the Chairperson may authorize another member to replace the incapacitated or deceased member, or the member who resigned, for the rest of the hearing and to participate in the decision, if the incapacity, resignation or death occurs during the hearing; or

  • (b) if the incapacity, resignation or death occurs after the conclusion of the hearing but before a decision is given, the remaining members may, if unanimous, give a decision as if the incapacitated or deceased member, or the member who resigned, were present and participating in the decision.

• Marginal note:Incapacity of member — Part III certificate

  (3) If a hearing in relation to an application for a certificate under Part III is being conducted by three members and one member becomes incapacitated, resigns or dies during the hearing or after its conclusion but before the report that is required to be prepared under subsection 52(1) is finalized,

  • (a) the Chairperson may authorize another member to replace the incapacitated or deceased member, or the member who resigned, for the rest of the hearing and to participate in the finalizing of the report, if the incapacity, resignation or death occurs during the hearing; or

  • (b) if the incapacity, resignation or death occurs after the conclusion of the hearing but before the report is finalized, the remaining members may, if unanimous, finalize the report as if the incapacitated or deceased member, or the member who resigned, were present and participating in its finalization.

• Marginal note:Effects of authorization

  (4) If a member is authorized under paragraph (2)(a) or (3)(a) to replace a member,

  • (a) evidence and representations received by the Board in the course of the hearing before the replacement are considered to have been received after the replacement; and

  • (b) the Board is bound by every decision made by the Board in the course of the hearing before the replacement unless the Board elects to review, vary or rescind a decision.

• Marginal note:Chairperson’s powers

  (5) Nothing in subsections (1) to (3) precludes the Chairperson from taking a measure under subsection 6(2.2).

• Marginal note:Member ceasing to hold office

  (6) A person who resigns or otherwise ceases to hold office as a member may, if authorized to do so by the Chairperson and on any terms and conditions that the Chairperson prescribes, continue to inquire into, hear and conclude any proceeding to which that person was assigned while that person was a member and the person shall for that purpose be considered to continue to be a member.

Marginal note:Confidentiality

16.1 In any proceedings under this Act, the Board may take any measures and make any order that it considers necessary to ensure the confidentiality of any information likely to be disclosed in the proceedings if the Board 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; or

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

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

  • (ii) the Board considers that the person’s interest in confidentiality outweighs the public interest in disclosure of the proceedings.

Marginal note:Confidentiality

16.2 In respect of any order, or in any proceedings, of the Board under this Act, the Board may take any measures and make any order that the Board considers necessary to ensure the confidentiality of information that is contained in the order or is likely to be disclosed in the proceedings if the Board is satisfied that

• (a) there is a real and substantial risk that disclosure of the information will impair the security of pipelines, international power lines, buildings, structures or systems, including computer or communication systems, or methods employed to protect them; and

• (b) the need to prevent disclosure of the information outweighs the public interest in disclosure of orders and proceedings of the Board.

Marginal note:Participant funding program

16.3 For the purposes of this Act, the Board may establish a participant funding program to facilitate the participation of the public in hearings that are held under section 24.

Orders and Decisions

Marginal note:Enforcement of Board orders

• 17 (1) Any decision or order made by the Board may, for the purpose of enforcement thereof, be made a rule, order or decree of the Federal Court or of a superior court of a province and shall be enforced in like manner as a rule, order or decree of that court.

• Marginal note:Procedure for enforcement

  (2) To make a decision or order of the Board a rule, order or decree of the Federal Court or a superior court, the usual practice and procedure of the court in such matters may be followed, or in lieu thereof the Secretary may produce to the court a certified copy of the decision or order under the seal of the Board and thereupon the decision or order becomes a rule, order or decree of the court.

Marginal note:General or particular orders

18 Where the Board may make or issue any order or direction or prescribe any terms or conditions or do any other thing in relation to any person, the Board may do so, either generally or in any particular case or class of cases.

Marginal note:Conditional orders, etc.

• 19 (1) Without limiting the generality of any provision of this Act that authorizes the Board to impose terms and conditions in respect of a certificate, licence or order issued by the Board, the Board may direct in any certificate, licence or order that it or any portion or provision thereof shall come into force at a future time or on the happening of any contingency, event or condition specified in the certificate, licence or order or on the performance to the satisfaction of the Board of any conditions that the Board may impose in the certificate, licence or order, and the Board may direct that the whole or any portion of the certificate, licence or order shall have force for a limited time or until the happening of a specified event.

• Marginal note:Non-application

  (1.1) Subsection (1) does not apply in respect of an application for a certificate under Part III.

• Marginal note:Interim orders

  (2) The Board may, instead of making an order final in the first instance, make an interim order, and may reserve its decision pending further proceedings in connection with any matter.

Marginal note:Granting of relief may be partial

• 20 (1) On any application made to the Board, the Board may make a decision or order granting the whole or part only of the application, or may grant such further or other related relief, in addition to or in lieu of that applied for, as to the Board may seem just and proper, to the same extent as if the application had been for such partial or related relief.

• Marginal note:Non-application

  (2) Subsection (1) does not apply in respect of an application for a certificate under Part III.

Marginal note:Review, etc., of decisions and orders

• 21 (1) Subject to subsection (2), the Board may review, vary or rescind any decision or order made by it or rehear any application before deciding it.

• Marginal note:Variation of certificates, licences and permits

  (2) The Board may vary a certificate, licence or permit but the variation of a certificate or licence, other than a variation changing the name of the holder of a certificate in respect of a pipeline or the name of the holder of a licence, is not effective until it is approved by the Governor in Council.

• Marginal note:Exception

  (3) This section does not apply to

  • (a) a decision, operating licence or authorization to which section 28.2 or 28.3 applies; or

  • (b) an approval of a development plan under section 5.1 of the Canada Oil and Gas Operations Act.

Marginal note:Transfer of certificates and licences

• 21.1 (1) A transfer of a certificate or a licence is not effective until authorized by the Board.

• Marginal note:Idem

  (2) In authorizing the transfer of a certificate or licence, the Board may, with the approval of the Governor in Council, impose, in addition to or in lieu of any terms and conditions to which the certificate or licence was previously subject, any further or other terms and conditions that the Board considers necessary or desirable in order to give effect to the purposes and provisions of this Act.

Marginal note:Transfer of permits

• 21.2 (1) A transfer of a permit is not effective until authorized by the Board.

• Marginal note:Idem

  (2) The Board may, in authorizing the transfer of a permit, impose, in addition to or in lieu of any terms and conditions to which the permit was previously subject, such further or other terms and conditions respecting the matters prescribed by the regulations as the Board considers necessary or desirable in order to give effect to the purposes and provisions of this Act.

Marginal note:Appeal to Federal Court of Appeal

• 22 (1) An appeal lies from a decision or order of the Board to the Federal Court of Appeal on a question of law or of jurisdiction, after leave to appeal is obtained from that Court.

• Marginal note:Application for leave to appeal

  (1.1) An application for leave to appeal must be made within thirty days after the release of the decision or order sought to be appealed from or within such further time as a judge of that Court under special circumstances allows.

• Marginal note:Entry of appeal

  (2) No appeal lies after leave has been obtained under subsection (1) unless it is entered in the Federal Court of Appeal within sixty days from the making of the order granting leave to appeal.

• Marginal note:Board may be heard

  (3) The Board is entitled to be heard by counsel or otherwise on the argument of an appeal.

• Marginal note:Report not decision or order

  (4) For greater certainty, for the purpose of this section, no report submitted by the Board under section 52 or 53 — or under section 29 or 30 of the Canadian Environmental Assessment Act, 2012 — and no part of any such report, is a decision or order of the Board.

Marginal note:Decisions final

• 23 (1) Except as provided in this Act, every decision or order of the Board is final and conclusive.

• Marginal note:Decision or order

  (2) Any minute or other record of the Board or any document issued by the Board, in the form of a decision or order, shall for the purposes of this section be deemed to be a decision or order of the Board.

Marginal note:Public hearings

• 24 (1) Subject to subsection (2), hearings before the Board with respect to the issuance, revocation or suspension of certificates or for leave to abandon the operation of a pipeline shall be public.

• Marginal note:Exception

  (2) A public hearing need not be held where the Board, on the application or with the consent of the holder, revokes or suspends

  • (a) a certificate issued in respect of an international or interprovincial power line, regardless of whether the power line has been brought into commercial operation under that certificate; or

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

• Marginal note:Other matters

  (3) The Board may hold a public hearing in respect of any other matter if it considers it advisable to do so.

Fees, Levies and Charges

Marginal note:Regulations imposing fees, etc.

• 24.1 (1) Subject to the approval of the Treasury Board, the National Energy Board may, for the purposes of recovering all or a portion of such costs as the National Energy Board determines to be attributable to its responsibilities under this or any other Act of Parliament, make regulations

  • (a) imposing fees, levies or charges on any person or company authorized under this Act to

    • (i) construct or operate a pipeline or an international or interprovincial power line,

    • (ii) charge tolls,

    • (iii) export or import oil or gas, or

    • (iv) export electricity; and

  • (b) providing for the manner of calculating the fees, levies and charges in respect of the person or company and their payment to the National Energy Board.

• 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 person or company on any fee, levy or charge not paid by the person or 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 to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction.

Proof of Documents

Marginal note:Proof of documents

25 In any action or other proceedings

• (a) any document purporting to be certified by the Secretary, or by any other person authorized by the Board to certify documents for the purposes of this section, and sealed with the seal of the Board to be a true copy of any minute, decision, licence, certificate, permit, order, instruction, book of reference, book entry, plan, drawing or other document or any part thereof, is, without proof of the signature of the Secretary or other person, evidence of the original document of which it purports to be a copy, and that the document was made, given, issued or deposited at the time stated in the certification, if a time is stated therein, and is signed, certified, attested or executed by the persons by whom and in the manner in which the document purports to be signed, certified, attested or executed as shown or appearing from the certified copy; and

• (b) a document purporting to be certified by the Secretary, or by any other person authorized by the Board to certify documents for the purposes of this section, and sealed with the seal of the Board stating that a valid and subsisting document of authorization has or has not been issued by the Board to a person or persons named in the certified document, is evidence of the facts stated in it, without proof of the signature or official character of the person appearing to have signed the document and without further proof.

PART IIAdvisory Functions

Marginal note:Study and review

• 26 (1) The Board shall study and keep under review matters over which Parliament has jurisdiction relating to

  • (a) the exploration for, and the production, recovery, manufacture, processing, transmission, transportation, distribution, sale, purchase, exchange and disposal of, energy and sources of energy in and outside Canada; and

  • (b) the safety and security of pipelines and international power lines.

• Marginal note:Report and recommendations to Minister

  (1.1) The Board shall report on the matters referred to in subsection (1) from time to time to the Minister and shall recommend to the Minister such measures within the jurisdiction of Parliament as it considers necessary or advisable in the public interest for

  • (a) the control, supervision, conservation, use, marketing and development of energy and sources of energy; and

  • (b) the safety and security of pipelines and international power lines.

• Marginal note:Request of Minister

  (2) The Board shall, with respect to energy matters, sources of energy and the safety and security of pipelines and international power lines,

  • (a) provide the Minister with such advice as the Minister may request, including advice relating to the export pricing of oil and gas;

  • (b) prepare such studies and reports as the Minister may request; and

  • (c) recommend to the Minister the making of such arrangements as it considers desirable for cooperation with governmental or other agencies in or outside Canada.

• Marginal note:Use of government agencies

  (3) In carrying out its duties and functions under this section, the Board shall, wherever appropriate, utilize agencies of the Government of Canada to obtain technical, economic and statistical information and advice.

• Marginal note:Other advisory functions

  (4) The Board and its officers and employees may, on request, provide advice about energy matters, sources of energy and the safety and security of pipelines and international power lines to

  • (a) ministers, officers and employees of any government department or ministry, whether federal, provincial or territorial; and

  • (b) members, officers and employees of any government agency, whether federal, provincial or territorial.

Marginal note:Publication of studies and reports

27 Studies and reports of the Board made under this Part may be made public with the approval of the Minister.

Marginal note:Powers of Board

28 For the purposes of this Part, the Board has all the powers of commissioners under Part I of the Inquiries Act.

PART II.1Oil and Gas Interests, Production and Conservation

Interpretation

Definitions of oil and gas

28.1 For the purposes of this Part, oil and gas have the same meaning as in the Canada Oil and Gas Operations Act.

Declarations of Significant Discovery and Commercial Discovery

Marginal note:Application

• 28.2 (1) This section applies to any decision of the Board to make, amend or revoke a declaration of significant discovery under section 28 of the Canada Petroleum Resources Act or a declaration of commercial discovery under section 35 of that Act.

• Marginal note:Notice

  (2) At least thirty days before making a decision to which this section applies, the Board shall give written notice of its intention to make the decision to any person the Board considers to be directly affected by the decision.

• Marginal note:Request for hearing

  (3) A person to whom notice is given may, in writing, request a hearing in respect of the decision, but the request must be received by the Board within thirty days after the notice is given.

• Marginal note:Decision if no request received

  (4) If no request is received in accordance with subsection (3), the Board may make the decision.

• Marginal note:Hearing if request received

  (5) If a request is received in accordance with subsection (3), the Board shall fix a suitable time and place for the hearing and notify each person who requested the hearing.

• Marginal note:Representations

  (6) Each person who requests a hearing may make representations and introduce witnesses and documents at the hearing.

• Marginal note:Decision

  (7) At or after the conclusion of the hearing, the Board shall make the decision, give notice of it to each person who requested the hearing and, if the person requests reasons, publish or make available the reasons for the decision.

Operating Licences and Authorizations

Marginal note:Variation of licences, etc.

28.3 The Board may vary the terms of any operating licence or authorization issued under section 5 of the Canada Oil and Gas Operations Act.

Chief Conservation Officer and Chief Safety Officer

Marginal note:Application to appeals

• 28.4 (1) This section applies to appeals brought under section 21 or subsection 25(8) of the Canada Oil and Gas Operations Act by a person aggrieved by an order of the Chief Conservation Officer or by any action or measure taken or authorized or directed to be taken by that Officer, other than the referral of an order to the Board under subsection 58(5) of that Act.

• Marginal note:Powers on appeal

  (2) After hearing an appeal to which this section applies, the Board may

  • (a) set aside, confirm or vary the order, action or measure that is the subject of the appeal;

  • (b) order any works to be undertaken that the Board considers necessary to prevent waste, the escape of oil or gas or any other contravention of the Canada Oil and Gas Operations Act or the regulations made under that Act; or

  • (c) make any other order that the Board considers appropriate.

Marginal note:Applications for show cause hearing relating to waste

• 28.5 (1) This section applies to applications by the Chief Conservation Officer to the Board under section 22 of the Canada Oil and Gas Operations Act for a show cause hearing relating to waste, as defined in paragraph 18(2)(f) or (g) of that Act, in the recovery of oil or gas from a pool.

• Marginal note:Order

  (2) On receiving an application, the Board shall make an order requiring the operators within the pool to show cause at a hearing, to be held on a day specified in the order, why the Board should not make a direction in respect of the waste.

• Marginal note:Hearing

  (3) On the day specified in the order, the Board shall hold a hearing at which the Chief Conservation Officer, the operators and other interested persons shall be given an opportunity to be heard.

• Marginal note:Direction

  (4) If, after the hearing, the Board is of the opinion that waste is occurring in the recovery of oil or gas from a pool, the Board may, by order,

  • (a) direct the introduction of a scheme for the collection, processing, disposition or reinjection of any gas produced from the pool; or

  • (b) direct repressurizing, recycling or pressure maintenance for the pool or any part of the pool and for or incidental to that purpose, direct the introduction or injection of gas, water or any other substance into the pool or any part of the pool.

• Marginal note:Additional direction

  (5) In addition to making a direction under subsection (4), the Board may, by order, direct that the pool or any part of the pool specified in the order be shut in if the requirements of the order are not met or unless a scheme is approved by the Board and in operation by a date fixed in the order.

• Marginal note:Continuation pending approval of scheme

  (6) Notwithstanding subsections (4) and (5), the Board may, by order, permit the continued operation of a pool or any part of a pool after the date fixed by a direction under this section if, in the opinion of the Board, a scheme or other action described in paragraph (4)(a) or (b) is in the course of preparation, but the continued operation is subject to any conditions imposed by the Board.

Marginal note:Application

• 28.6 (1) This section applies to an order referred by the Chief Safety Officer or the Chief Conservation Officer to the Board under subsection 58(5) of the Canada Oil and Gas Operations Act.

• Marginal note:Review and decision

  (2) The Board shall review the need for the order and may confirm it or set it aside.

• Marginal note:Burden of proof

  (3) The burden of establishing that the order is not needed is on the person who requested that the order be referred to the Board.

Orders

Marginal note:Offence

• 28.7 (1) Every person who fails to comply with an order of the Board under section 28.4 or 28.5 is guilty of an offence and is liable

  • (a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or

  • (b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

• Marginal note:Applicable provisions

  (2) Sections 65 to 71 of the Canada Oil and Gas Operations Act apply, with such modifications as the circumstances require, in respect of an offence under subsection (1).

Marginal note:Orders not statutory instruments

28.8 For greater certainty, an order of the Board made under this Part is not a statutory instrument as defined in the Statutory Instruments Act.

PART IIIConstruction, Operation and Abandonment of Pipelines

General

Marginal note:Companies only

• 29 (1) No person, other than a company, shall construct or operate a pipeline.

• Marginal note:Exception

  (2) Nothing in this section shall be construed to prohibit or prevent any person from operating or improving a pipeline constructed before October 1, 1953, but every such pipeline shall be operated in accordance with this Act.

• Marginal note:Powers of liquidators, trustees, etc.

  (3) For the purposes of this Act,

  • (a) a liquidator, receiver or manager of the property of a company, appointed by a court of competent jurisdiction to carry on the business of the company,

  • (b) a trustee — or the holder of a power of attorney within the meaning of the Civil Code of Québec — for the holders of bonds, debentures, debenture stock or other evidence of indebtedness of the company, secured under a trust deed, an act constituting a hypothec or other instrument or act, on or against the property of the company, if the trustee or holder is authorized by the instrument or act to carry on the business of the company, and

  • (c) a person, other than a company,

    • (i) operating a pipeline constructed before October 1, 1953, or

    • (ii) constructing or operating a pipeline exempted from subsection (1) by an order of the Board made under subsection 58(1),

  is deemed to be a company.

• Marginal note:Administrator in Province of Quebec

  (3.1) In the Province of Quebec the administrator of the property of the company appointed by a court of competent jurisdiction to carry on the business of the company is also deemed to be the company.

• Marginal note:Successor or assign — abandoned pipeline

  (4) For the purposes of this Act, a successor or assign of a company is deemed to be a company for any matter relating to an abandoned pipeline.

Marginal note:Operation of pipeline

• 30 (1) No company shall operate a pipeline unless

  • (a) there is a certificate in force with respect to that pipeline; and

  • (b) leave has been given under this Part to the company to open the pipeline.

• Marginal note:Compliance with conditions

  (2) No company shall operate a pipeline otherwise than in accordance with the terms and conditions of the certificate issued with respect thereto.

Location of Pipelines

Marginal note:Approval of Board

31 Except as otherwise provided in this Act, no company shall begin the construction of a section or part of a pipeline unless

• (a) the Board has by the issue of a certificate granted the company leave to construct the line;

• (b) the company has complied with all applicable terms and conditions to which the certificate is subject;

• (c) the plan, profile and book of reference of the section or part of the proposed line have been approved by the Board; and

• (d) copies of the plan, profile and book of reference so approved, duly certified as such by the Secretary, have been deposited in the offices of the registrars of deeds for the districts or counties through which the section or part of the pipeline is to pass.

Marginal note:Application for certificate

• 32 (1) On an application for a certificate, the company shall file with the Board a map in such detail as the Board may require showing the general location of the proposed line and such plans, specifications and information as the Board may require.

• Marginal note:Notice to provincial attorney general

  (2) The company shall file a copy of the application and of the map referred to in subsection (1) with the attorney general of each province to which the application relates in whole or in part, and the Board shall require notice of the application to be given by publication in newspapers or otherwise.

Plan, Profile and Book of Reference

Marginal note:Plan, etc., of pipeline

• 33 (1) When the Board has issued a certificate, the company shall prepare and submit to the Board a plan, profile and book of reference of the pipeline.

• Marginal note:Details

  (2) The plan and profile shall be drawn with such detail as the Board may require.

• Marginal note:Description of lands

  (3) The book of reference shall describe the portion of land proposed to be taken in each parcel of land to be traversed, giving the numbers of the parcels, and the area, length and width of the portion of each parcel to be taken, and the names of the owners and occupiers in so far as they can be ascertained.

• Marginal note:Further information

  (4) The plan, profile and book of reference shall be prepared to the satisfaction of the Board, and the Board may require the company to furnish any further or other information that the Board considers necessary.

Determination of Detailed Route and Approval

Marginal note:Notice to owners

• 34 (1) Where a company has prepared and submitted to the Board a plan, profile and book of reference pursuant to subsection 33(1), the company shall, in a manner and in a form to be determined by the Board,

  • (a) serve a notice on all owners of lands proposed to be acquired, in so far as they can be ascertained; and

  • (b) publish a notice in at least one issue of a publication, if any, in general circulation within the area in which the lands are situated.

• Marginal note:Contents of notices

  (2) The notices mentioned in subsection (1) shall describe the proposed detailed route of the pipeline, the location of the offices of the Board and the right of the owner and of persons referred to in subsection (4) to make, within the time referred to in subsection (3) or (4), as the case may be, representations to the Board respecting the detailed route of the pipeline.

• Marginal note:Written statement of interest and grounds for opposition

  (3) Where an owner of lands who has been served with a notice pursuant to subsection (1) wishes to oppose the proposed detailed route of a pipeline, the owner may, within thirty days of being served, file with the Board a written statement setting out the nature of the owner’s interest in the proposed detailed route and the grounds for his opposition to that route.

• Marginal note:Opposition by persons adversely affected

  (4) A person who anticipates that their lands may be adversely affected by the proposed detailed route of a pipeline, other than an owner of lands referred to in subsection (3), may oppose the proposed detailed route by filing with the Board within thirty days following the last publication of the notice referred to in subsection (1) a written statement setting out the nature of that person’s interest and the grounds for the opposition to the proposed detailed route of the pipeline.

Marginal note:Public hearing

• 35 (1) Where a written statement is filed with the Board pursuant to subsection 34(3) or (4) within the time limited for doing so under that subsection, the Board shall forthwith order that a public hearing be conducted within the area in which the lands to which the statement relates are situated with respect to any grounds of opposition set out in any such statement.

• Marginal note:Notice of public hearing

  (2) The Board shall fix a suitable time and place for the public hearing referred to in subsection (1) and cause notice of the time and place so fixed to be given by publishing it in at least one issue of a publication, if any, in general circulation within the area in which the lands proposed to be acquired are situated and by sending it to each person who filed a written statement with the Board pursuant to subsection 34(3) or (4).

• Marginal note:Opportunity to be heard

  (3) At the time and place fixed for the public hearing pursuant to subsection (2), the Board shall hold a public hearing and shall permit each person who filed a written statement with the Board pursuant to subsection 34(3) or (4) to make representations and may allow any other interested person to make such representations before it as the Board deems proper.

• Marginal note:Inspection of lands

  (4) The Board or a person authorized by the Board may make such inspection of lands proposed to be acquired for or affected by the pipeline construction as the Board deems necessary.

• Marginal note:Where written statements disregarded

  (5) The Board is not required to give any notice, hold any hearing or take any other action pursuant to this section with respect to any written statement filed with the Board pursuant to subsection 34(3) or (4) and may at any time disregard any such written statement, if

  • (a) the person who filed the statement files a notice of withdrawal thereof with the Board; or

  • (b) it appears to the Board that the statement is frivolous or vexatious or is not made in good faith.

Marginal note:Matters to be taken into account

• 36 (1) Subject to subsections (2) and 35(5), the Board shall not give approval to a plan, profile and book of reference unless the Board has taken into account all written statements filed with it pursuant to subsection 34(3) or (4) and all representations made to it at a public hearing in order to determine the best possible detailed route of the pipeline and the most appropriate methods and timing of constructing the pipeline.

• Marginal note:Exception

  (2) The Board may approve a plan, profile and book of reference in respect of any section or part of a pipeline where no written statement under subsection 34(3) or (4) has been filed with the Board in respect of that section or part.

Marginal note:Terms and conditions

37 In any approval referred to in section 36, the Board may impose such terms and conditions as it considers proper.

Marginal note:Notice of decision

38 Where the Board has held a public hearing under subsection 35(3) in respect of any section or part of a pipeline and approved or refused to approve a plan, profile and book of reference respecting that section or part, it shall forthwith forward a copy of its decision and the reasons therefor to the Minister and to each person who made representations to the Board at the public hearing.

Marginal note:Costs of making representations

39 The Board may fix such amount as it deems reasonable in respect of the actual costs reasonably incurred by any person who made representations to the Board at a public hearing under subsection 35(3) and the amount so fixed shall be payable forthwith to that person by the company whose pipeline route is affected by the public hearing.

Marginal note:Effect of approval

40 The Board shall not, by the issue of a certificate or by approving a plan, profile and book of reference, be deemed to have relieved the company from otherwise complying with this Act.

Errors

Marginal note:Application for correction of errors

• 41 (1) Where any omission, misstatement or error is made in a registered plan, profile or book of reference, the company shall apply to the Board for a permit to correct the omission, misstatement or error.

• Marginal note:How corrected

  (2) The Board may in its discretion issue a permit setting out the nature of the omission, misstatement or error referred to in subsection (1) and the correction allowed.

• Marginal note:Registration

  (3) On the deposit of copies of the permit issued under subsection (2), certified as such by the Secretary, in the offices of the registrars of deeds of the districts or counties in which the lands affected are situated, the plan, profile or book of reference shall be taken to be corrected in accordance therewith, and the company may, thereupon, subject to this Act, construct its pipeline in accordance with the correction.

Marginal note:Error as to names

42 A pipeline may be made, carried or placed across, on or under the lands of a person on the located line, although, through error or any other cause, the name of that person has not been entered in the book of reference, or although some other person is erroneously mentioned as the owner or holder of an interest or right in the lands.

Duties of Registrars of Deeds

Marginal note:Registration of plans, etc.

• 43 (1) Every registrar of deeds shall receive and preserve in his office all plans, profiles, books of reference, certified copies thereof and other documents, required by this Act to be deposited with the registrar, and shall endorse thereon the day, hour and minute when they were so deposited.

• Marginal note:Copies

  (2) Any person may inspect the plans, profiles, books of reference, copies and documents deposited under subsection (1) and may make extracts therefrom and copies thereof as occasion requires.

• Marginal note:Certified copies

  (3) A registrar of deeds shall, at the request of any person, certify copies of any plan, profile, book of reference, certified copy thereof or other document deposited in the registrar’s office under this Act, or of such portions thereof as may be required, on being paid therefor at the rate of twenty cents for each hundred words copied, and such additional sum for any copy of plan or profile furnished by the registrar as is reasonable and customary in like cases, together with one dollar for each certification given by the registrar.

• Marginal note:Certification of registrar

  (4) The certification of the registrar of deeds shall set out that the plan, profile or document referred to in subsection (3), a copy of which, or any portion of which, is certified by the registrar, is deposited in the registrar’s office, and shall state the time when it was deposited, that the registrar has carefully compared the copy certified with the document on file and that it is a true copy of the original.

• Marginal note:Evidence

  (5) A certified copy referred to in subsection (4) is evidence of the original deposited and is evidence that the original was deposited at the time stated and certified, and that it was signed, certified, attested or otherwise executed by the persons by whom and in the manner in which the original purports to be signed, certified, attested or executed, as shown or appearing by the certified copy, and, in the case of a plan, that the plan is prepared according to a scale and in a manner and form sanctioned by the Board.

Further Plans

Marginal note:Further plans

44 In addition to the plans, profiles and books of reference elsewhere provided for in this Act, a company shall, with all reasonable expedition, prepare and deposit with the Board such further or other material, including plans, specifications and drawings with respect to any portion of its pipeline or works, as the Board may from time to time order or require.

Deviations

Marginal note:Approval of deviations

• 45 (1) When a deviation, change or alteration is required by a company to be made in its pipeline, or any portion of that pipeline, as already constructed or as merely located and approved, a plan, profile and book of reference of the portion of the pipeline proposed to be changed, showing the deviation, change or alteration proposed to be made, shall be submitted for the approval of the Board.

• Marginal note:Construction of works after approval

  (2) When the plan, profile and book of reference, submitted pursuant to subsection (1), of the portion of the pipeline proposed to be changed have been approved by the Board, and copies thereof have been deposited as provided in this Act with respect to the original plan, profile and book of reference, the company may make the deviation, change or alteration, and all the provisions of this Act are applicable to the portion of the pipeline, at any time so changed or proposed to be changed, in the same manner as they are applicable to the original pipeline.

• Marginal note:Exemptions

  (3) The Board may exempt a company from all or any of the provisions of this section where the deviation, change or alteration was made or is to be made for the purpose of benefiting a pipeline, or for any other purpose of public advantage, as may seem to the Board expedient, but the deviation, change or alteration shall not exceed such distance as the Board requires from the centre line of the pipeline, located or constructed in accordance with the plans, profiles and books of reference approved by the Board under this Act.

Diversion or Relocation

Marginal note:Diversions and relocation

• 46 (1) The Board may, on such terms and conditions as it considers proper, direct a company to divert or relocate its pipeline if the Board is of the opinion that the diversion or relocation is necessary

  • (a) to facilitate the construction, reconstruction or relocation of a highway or a railway or any other work affecting a public interest; or

  • (b) to prevent or remove an interference with a drainage system.

• Marginal note:Costs of diversion or relocation

  (2) The Board may direct by whom and to whom the costs of the diversion or relocation referred to in subsection (1) shall be paid.

• Marginal note:Procedures

  (3) The Board shall not direct a company to divert or relocate any section or part of its pipeline unless the procedures set out in sections 34 to 38 have been complied with in respect of the section or part to be diverted or relocated.

• Marginal note:Idem

  (4) For the purposes of ensuring that the procedures set out in sections 34 to 38 are complied with, the Board may order the company to carry out such of those procedures as the company would be required to carry out if the company had prepared and submitted to the Board a plan, profile and book of reference pursuant to subsection 33(1) and those sections shall apply, with such modifications as the circumstances require, in respect of any matter related to the carrying out of those procedures.

• Marginal note:Costs of representations to Board

  (5) The Board may fix such amount as it deems reasonable in respect of the actual costs reasonably incurred by any person who made representations to the Board under this section and may direct by whom and to whom the amount so fixed shall be paid.

Leave to Open Pipelines

Marginal note:Leave to open line

• 47 (1) No pipeline and no section of a pipeline shall be opened for the transmission of hydrocarbons or any other commodity by a company until leave to do so has been obtained from the Board.

• Marginal note:Grant of leave

  (2) Leave may be granted by the Board under this section if the Board is satisfied that the pipeline may safely be opened for transmission.

Regulation of Construction, Operation and Abandonment

Marginal note:Safety and security

• 48 (1) To promote the safety and security of operation of a pipeline, the Board may order a company to repair, reconstruct or alter part of the pipeline, and may direct that, until the work is done, that part of the pipeline not be used or be used in accordance with such terms and conditions as the Board may specify.

• Marginal note:Other measures

  (1.1) The Board may order a company to take measures in respect of a pipeline or an abandoned pipeline that the Board considers necessary for

  • (a) the safety and security of the public, of the company’s employees or of the pipeline or the abandoned pipeline; or

  • (b) the protection of property or the environment.

• Marginal note:Measures to be taken

  (1.2) If a company does not comply with an order of the Board referred to in subsection (1.1) or an order of an inspection officer made under subsection 51.1(1), the Board or any of its officers or employees — or class of officers and employees — that the Board authorizes may take any action or measure that they consider necessary in relation to the abandonment of a pipeline by the company or in relation to the company’s abandoned pipeline, or they may authorize a third party to take any such action or measure.

• Marginal note:No liability

  (1.3) No action lies against the Board or an officer or employee of the Board or against Her Majesty in right of Canada or an employee of Her Majesty for anything done or omitted to be done in taking any action or measure referred to in subsection (1.2).

• Marginal note:Third party liability

  (1.4) A third party that is authorized under subsection (1.2) to take any action or measure referred to in that subsection is not liable in respect of any act or omission committed in taking those actions or measures unless it is shown that the third party did not act reasonably in the circumstances.

• Marginal note:Regulations as to safety and security

  (2) The Board may, with the Governor in Council’s approval, make regulations

  • (a) governing the design, construction, operation and abandonment of a pipeline;

  • (b) providing for the protection of property and the environment and the safety and security of the public and of the company’s employees in the design, construction, operation and abandonment of a pipeline; and

  • (c) governing abandoned pipelines.

• Marginal note:Exempting orders respecting companies

  (2.1) The Board may make orders exempting companies from any or all of the provisions of the regulations made under subsection (2).

• Marginal note:Terms and conditions

  (2.2) In any order made under subsection (2.1), the Board may impose such terms and conditions as it considers proper.

• Marginal note:Regulations — Governor in Council

  (2.3) Without limiting the scope of the regulations that the Board may make under subsection (2), the Governor in Council may, on the Minister’s recommendation, make regulations

  • (a) specifying requirements with respect to monitoring pipelines; and

  • (b) respecting the actions or measures to be taken in preparation for or in the case of an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline.

• Marginal note:Offence

  (3) Every person who contravenes an order made under subsection (1) or (1.1) or a regulation made under subsection (2) is guilty of an offence and liable

  • (a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or

  • (b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

• Marginal note:Application of subsections 121(2) to (5)

  (4) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, to an offence referred to in subsection (3).

Marginal note:Abandoned pipelines

• 48.1 (1) No person shall, without the Board’s leave, make contact with, alter or remove an abandoned pipeline.

• Marginal note:Terms

  (2) The Board may, on granting an application for leave under this section, impose any terms that it considers proper.

• Marginal note:Exception

  (3) The Board may make orders or regulations governing the circumstances in which or conditions under which leave is not necessary.

Polluter Pays Principle

Marginal note:Purpose

48.11 The purpose of sections 48.12 to 48.17 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.

Liability

Marginal note:Recovery of loss, damage, costs, expenses

• 48.12 (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 Aboriginal 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, one billion dollars 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,

  • (a) prescribe an amount greater than one billion dollars for the purposes of paragraph (5)(a); and

  • (b) prescribe an amount for the purposes of paragraph (5)(b) in respect of a company or class of companies.

• 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

  (8) The costs and expenses that are recoverable by Her Majesty in right of Canada or a province under this section are not recoverable under subsection 42(1) of the 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).

• Marginal note:Claims

  (10) All claims under this section may be sued for and recovered in any court of competent jurisdiction in Canada and shall rank, firstly, in favour of persons incurring actual loss or damage described in paragraph (1)(a), without preference, secondly, to meet the costs and expenses described in paragraph (1)(b), and, lastly, to recover a loss of non-use value described in paragraph (1)(c).

• Marginal note:Saving

  (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 within three years from the day on which the loss, damage or costs and expenses were incurred but in no case after six years from the day on which the release occurred.

Financial Requirements

Marginal note:Financial resources

• 48.13 (1) A company that is authorized under this Act to construct or operate a pipeline shall maintain the amount of financial resources necessary to pay the amount of the limit of liability referred to in subsection 48.12(5) that applies to it or, if the Board specifies a greater amount, that amount.

• Marginal note:Types of financial resources

  (2) The Board may, subject to the regulations made under subsection (7), order a company, either individually or as a member of a class of companies authorized under this Act to construct or operate a pipeline, to maintain the amount of financial resources that is referred to in subsection (1) in the types that the Board specifies, including types that shall be readily accessible to the company and, if the Board specifies types of financial resources, it may specify the amount that the company is required to maintain under each type.

• Marginal note:Duty to satisfy Board

  (3) At the Board’s request, the company shall satisfy the Board that it meets the requirement to maintain the amount of financial resources referred to in subsection (1) and that it complies with any order made under subsection (2). The Board may consider, among other things, the company’s financial statements, letters of credit, guarantees, bonds or suretyships and insurance.

• Marginal note:Greater amount

  (4) The Board may, by order, specify an amount for the purposes of subsection (1).

• Marginal note:Loss of non-use value

  (5) When the Board specifies an amount for the purposes of subsection (1), it is not required to consider any potential loss of non-use value relating to a public resource that is affected by an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline or by any action or measure taken in relation to the release.

• Marginal note:Continuing obligation

  (6) A company that is authorized under this Act to construct or operate a pipeline shall maintain the amount of financial resources referred to in subsection (1) and shall comply with any order made under subsection (2) and any regulation made under subsection (7) only until it obtains leave from the Board to abandon the operation of its pipeline.

• Marginal note:Regulations

  (7) The Governor in Council may, on the Minister’s recommendation, make regulations

  • (a) providing for the types of financial resources from which the Board may choose if it specifies types of financial resources under subsection (2), including those from which the Board may choose if it specifies types of financial resources that shall be readily accessible to the company; and

  • (b) respecting the amount of financial resources that shall be readily accessible to a company individually or as a member of a class of companies.

Marginal note:Pooled fund

• 48.14 (1) Subject to subsection (2), a company may meet all or a portion of its financial requirements under subsection 48.13(1) by participating in a pooled fund that is established by companies which are authorized under this Act to construct or operate a pipeline, that meets the requirements established by the regulations and from which the Board may withdraw any amount under subsection 48.16(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 48.13(1), the company shall 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

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

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

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

  • (d) specifying 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

48.15 If an unintended or uncontrolled release of oil, gas or any other commodity from a pipeline occurs, the Board may order the company that is authorized under this Act to construct or operate that pipeline to reimburse any federal, provincial or municipal government institution, any Aboriginal governing body or any person the costs and expenses that the Board 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 48.12(5) that applies to that company.

Designated Company

Marginal note:Designation

• 48.16 (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 is of the opinion 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 Board 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 Board or any of its officers or employees — or class of officers or employees — that the Board 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 such action or measure.

• Marginal note:No liability

  (3) No action lies against the Board or an officer or employee of the Board or against Her Majesty in right of Canada or an employee of Her Majesty for anything done or omitted to be done 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 taking those actions or measures unless it is shown that the third party did not act reasonably in the circumstances.

• Marginal note:Reimbursement —  measures taken by government institution

  (5) If the Governor in Council designates a company under subsection (1), the Board may reimburse any federal, provincial or municipal government institution, any Aboriginal governing body or any person the costs and expenses that the Board 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 48.14(1), the Board 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.

• 48.17 (1) Subject to the Treasury Board’s approval, the Board shall, for the purposes of recovering the amounts paid out of the Consolidated Revenue Fund under subsection 48.46(1), even if those amounts are more than the amount of the limit of liability referred to in subsection 48.12(5) that applies to a designated company, make regulations

  • (a) imposing fees, levies or charges on a designated company and 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 Board.

• 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

• 48.18 (1) The Governor in Council may, by order, after a designation is made under subsection 48.16(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 is of the opinion that it is in the public interest to do so.

• Marginal note:Claims treated equitably

  (3) A Tribunal shall 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

48.19 For greater certainty, nothing in sections 48.18 and 48.2 to 48.48 is to be construed as restricting the jurisdiction of a court of competent jurisdiction with respect to the release referred to in subsection 48.18(1).

Marginal note:Public notice

48.2 Immediately after a Tribunal is established, the Board shall 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 shall 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

• 48.21 (1) A Tribunal consists of 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 Board shall pay the members the remuneration and expenses that are fixed by the Governor in Council.

Marginal note:Tenure

• 48.22 (1) Each member of a Tribunal shall 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

48.23 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

• 48.24 (1) The Governor in Council shall, 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:Tribunal staff

48.25 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, their terms and conditions of employment and, with the Treasury Board’s approval, fix their remuneration.

Marginal note:Technical or specialized knowledge

48.26 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 terms and conditions of their employment and, with the Treasury Board’s approval, fix their remuneration and expenses.

Marginal note:Payment by Board

48.27 The Board shall pay the remuneration and expenses referred to in sections 48.25 and 48.26.

Marginal note:Staff and facilities

48.28 The Board shall provide a Tribunal with any professional, technical, secretarial, clerical and other assistance and any facilities and supplies that, in the Board’s opinion, are necessary to enable the Tribunal to exercise its powers and perform its duties and functions.

Tribunal’s Powers, Duties and Functions

Marginal note:Hearings

48.29 A Tribunal shall conduct its hearings in Canada at the times and locations that it considers appropriate.

Marginal note:Powers — witnesses and documents

• 48.3 (1) A Tribunal has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters that are necessary or proper for the exercise of its jurisdiction, all of the powers, rights and privileges that are vested in a superior court.

• 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 shall 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

48.31 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 are, in the Tribunal’s opinion, reasonably necessary.

Marginal note:Frivolous or vexatious claims

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

Marginal note:Written submissions

48.33 A Tribunal may examine and adjudicate claims for compensation or application for reconsideration based only on written submissions.

Marginal note:Rules

48.34 A Tribunal may make the rules that it considers necessary for the exercise of its powers and the performance of its duties and functions, including rules respecting

• (a) procedures for making a claim for compensation and those for making an application for reconsideration;

• (b) the information that shall be included with a claim for compensation or an application for reconsideration;

• (c) the conduct of its examination of claims for compensation and applications for reconsideration, including the conduct of its hearings;

• (d) the form and manner in which evidence shall be submitted; and

• (e) a quorum.

Claims for Compensation

Marginal note:Application

• 48.35 (1) Any person, partnership or unincorporated organization or federal, provincial or municipal government or any Aboriginal governing body may, within the prescribed period, make to a Tribunal a claim for compensation for compensable damage caused by the release that occurred from a designated company’s pipeline.

• Marginal note:Panel

  (2) As soon as feasible after the day on which the claim is made, the Chairperson shall

  • (a) assign the claim to the Tribunal;

  • (b) establish a panel of the Tribunal and assign the claim to that panel; or

  • (c) assign the claim to an existing panel.

• Marginal note:Notice

  (3) The Chairperson shall notify the claimant, the designated company and the Board that the claim has been assigned.

• Marginal note:Powers and duties

  (4) A panel has the powers, other than the power described in section 48.34, and the duties and functions of the Tribunal with respect to any claim for compensation that is before that panel.

Marginal note:Public hearings

48.36 Tribunal hearings are to be held in public. However, a Tribunal may hold all or part of a hearing in private if, in its opinion,

• (a) a public hearing would not be in the public interest;

• (b) a person’s privacy interest outweighs the principle that hearings be open to the public; or

• (c) confidential business information may be disclosed.

Marginal note:Interim award of compensation

48.37 If it is authorized to do so by the regulations, a Tribunal may award interim compensation in respect of a claim for compensation. If the Tribunal awards interim compensation, it shall advise the Board, by notice, of the amount awarded.

Marginal note:Determining compensation

• 48.38 (1) A Tribunal shall decide whether to award a claimant compensation for the compensable damage that is referred to in their claim for compensation. If it decides to award compensation, it shall, having regard to any other amount of compensation that the claimant has been paid for that damage, determine the amount of compensation in accordance with the regulations and, if it is authorized by the regulations to award costs with respect to a claimant’s claim for compensation and it decides to do so, it shall determine the amount of those costs.

• Marginal note:Notice — decision

  (2) The Tribunal shall advise the claimant and the designated company, by notice, of its decision with respect to the claim for compensation, and if compensation or costs are awarded, it shall also advise the Board by that notice.

• Marginal note:Content of notice

  (3) The notice shall indicate

  • (a) the amount of any compensation or costs determined under subsection (1);

  • (b) any reduction in the amount of compensation provided for by the regulations; and

  • (c) any amounts that have already been paid to the claimant for the compensable damage that is referred to in their claim.

Payment by the Board

Marginal note:Amount to be paid

• 48.39 (1) The Board shall, subject to section 48.4 and within the prescribed period, pay to the claimant

  • (a) the amount of interim compensation indicated in the notice referred to in section 48.37;

  • (b) subject to the regulations, the amount of compensation and costs indicated in the notice referred to in subsection 48.38(2) and any interest payable on that compensation; and

  • (c) if the amount of compensation and costs indicated in the notice referred to in subsection 48.44(2) is more than the amount paid by the Board under paragraph (b), subject to the regulations, an amount equal to the difference between those amounts.

• Marginal note:Interest on claim

  (2) If the regulations provide for interest with respect to a claim for compensation, the interest accrues at the rate prescribed under the Income Tax Act for amounts payable by the Minister of National Revenue as refunds of overpayments of tax under that Act that are in effect from time to time.

• Marginal note:Fees and travel expenses

  (3) If it is authorized to do so by the regulations, a Tribunal may, in accordance with the regulations, award fees and travel expenses. If the Tribunal awards fees and travel expenses, it shall advise the Board, by notice, of the amount awarded and the Board shall pay that amount.

Marginal note:Total amount

48.4 The total amount that the Board pays under subsection 48.39(1) shall not be more than the portion established by the Minister of Finance under subsection 48.46(2).

Marginal note:Recovery of overpayment

48.41 The following are debts that are due to Her Majesty in right of Canada and may be recovered in accordance with section 155 of the Financial Administration Act:

• (a) any overpayment to a claimant by the Board under subsection 48.39(1);

• (b) any amount paid to a claimant under paragraph 48.39(1)(b) in respect of a Tribunal’s decision that is rescinded; and

• (c) if the amount paid by the Board under paragraph 48.39(1)(b) in respect of a Tribunal’s decision that is amended under subsection 48.44(1) is more than the amount of compensation and costs indicated in the notice referred to in subsection 48.44(2), the amount that is equal to the difference between those amounts.

Marginal note:Report

48.42 Three months after the day on which a Tribunal is established, and every three months after that, the Board shall submit to the Minister and the Minister of Finance a report with respect to the amount of compensation and costs awarded by the Tribunal and the amount that the Board has paid under subsections 48.39(1) and (3).

Reconsideration

Marginal note:Reconsideration

• 48.43 (1) A Tribunal may, on its own motion or on the application of a claimant, reconsider its decision with respect to a claim for compensation and may either confirm the decision or amend or rescind the decision if the Chairperson is of the opinion that because of extraordinary factors a reconsideration of the decision outweighs the public interest in the finality of decisions of the Tribunal.

• Marginal note:Notice

  (2) The Chairperson shall notify the applicant, the designated company and the Board that the Tribunal or a panel of the Tribunal will reconsider its decision.

Marginal note:Determining compensation

• 48.44 (1) If, on reconsideration, a Tribunal decides to amend its decision, it shall decide whether to award the claimant compensation for the compensable damage that is referred to in their claim for compensation. If it decides to award compensation, it shall, having regard to any other amount of compensation that the applicant has been paid for that damage, determine the amount of compensation in accordance with the regulations and, if it is authorized by the regulations to award costs with respect to a claimant’s claim for compensation or the reconsideration of that claim and it decides to do so, it shall determine the amount of those costs.

• Marginal note:Notice — decision

  (2) The Tribunal shall advise the applicant, the designated company and the Board, by notice, of its decision with respect to the application for reconsideration.

• Marginal note:Content of notice

  (3) If the decision is amended, the notice shall indicate

  • (a) the amount of any compensation or costs determined under subsection (1);

  • (b) any reduction in the amount of compensation provided for by the regulations; and

  • (c) any amounts that have already been paid with respect to the claim in accordance with this Act.

Judicial Review

Marginal note:Grounds

48.45 Subject to section 48.43, every decision of a Tribunal is final and conclusive and is not to be questioned or reviewed in any court except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.

Appropriation and Repayment

Marginal note:Amount paid out of Fund

• 48.46 (1) There may be paid out of the Consolidated Revenue Fund, from time to time, any amount established by the Minister of Finance, on the Minister’s recommendation,

  • (a) to pay the costs and expenses incurred in taking any actions or measures referred to in subsection 48.16(2);

  • (b) to reimburse the costs and expenses referred to in subsection 48.16(5);

  • (c) to pay the costs of publishing the notice referred to in section 48.2;

  • (d) to pay the remuneration and expenses of a Tribunal’s members;

  • (e) to pay the remuneration of a Tribunal’s staff;

  • (f) to pay the remuneration and expenses of the counsel or notaries and other persons referred to in section 48.26;

  • (g) to pay the costs of providing a Tribunal with any of the assistance, facilities or supplies referred to in section 48.28;

  • (h) to pay the amounts that the Board shall pay under subsection 48.39(1); and

  • (i) to pay the fees and travel expenses referred to in paragraph 48.39(3).

• Marginal note:Amount appropriated for compensation

  (2) The Minister of Finance may, by order, after consultation with the Minister, establish the portion of the amount paid out under subsection (1) that may be used solely to pay the amounts referred to in paragraph (1)(h).

• Marginal note:Publication

  (3) The Minister shall, without delay, publish in the Canada Gazette a notice setting out the portion established by the Minister of Finance.

• Marginal note:Repayment

  (4) The Board shall deposit the amounts paid out under subsection (1) to the credit of the Receiver General in accordance with the terms and conditions established by the Minister of Finance.

Regulations

Marginal note:Regulations — Tribunal

48.47 The Governor in Council may make regulations respecting a Tribunal, including regulations

• (a) prescribing the terms and conditions of appointment of its members;

• (b) respecting conflict of interest;

• (c) prescribing the Chairperson’s powers, duties and functions;

• (d) respecting the absence or incapacity of the Chairperson or another member;

• (e) respecting the effects of replacing a member of the Tribunal, including on

  • (i) evidence and representations received by the Tribunal, or a panel of the Tribunal on which the member was sitting, before the replacement was appointed,

  • (ii) decisions made by the Tribunal or the panel before the replacement was appointed;

• (f) respecting the hiring and terms and conditions of employment of the Tribunal’s staff; and

• (g) generally, to enable the Tribunal to exercise its powers and perform it duties and functions.

Marginal note:Regulations — compensation

• 48.48 (1) The Governor in Council may make regulations establishing the costs, losses and damages for which a Tribunal may award compensation and regulations respecting that compensation, including regulations

  • (a) prescribing the period within which claims for compensation or applications for reconsideration shall be made to the Tribunal;

  • (b) authorizing the Tribunal to award interim compensation in respect of a claim for compensation;

  • (c) authorizing the Tribunal to award fees and travel expenses and costs with respect to claims for compensation and the reconsideration of those claims, as well as providing to whom the fees and travel expenses and costs may be awarded;

  • (d) establishing an order of priority among classes of compensable damage for the purpose of awarding compensation;

  • (e) providing for the reduction of the amount that the Board pays under subsection 48.39(1) and the criteria for such a reduction, including in respect of a class of compensable damage;

  • (f) fixing a maximum amount of compensation that may be awarded to a claimant, including in respect of a class of compensable damage;

  • (g) prescribing the period for the purposes of subsection 48.39(1);

  • (h) providing that a payment of any amount that the Board pays under subsection 48.39(1) be postponed;

  • (i) providing for the payment of any amount that the Board pays under subsection 48.39(1) in a lump sum or in payments of equal or different amounts over a period of time;

  • (j) providing for interest with respect to a claim for compensation or an application for reconsideration, as well as the period during which interest accrues; and

  • (k) generally, for carrying out the purposes of sections 48.18 to 48.48.

• Marginal note:Exception

  (2) A regulation made under subsection (1) is not to provide that the loss of non-use value in relation to damages to the environment caused by the release is a loss for which the Tribunal may award compensation.

Measures Related to Abandonment

Marginal note:Costs and expenses related to abandonment

• 48.49 (1) The Board may order a company to take any measure, including maintaining funds or security, that the Board considers necessary to ensure that the company has the ability to pay for the abandonment of its pipelines and any costs and expenses related to its abandoned pipelines.

• Marginal note:Funds or security

  (2) If the Board orders a company to maintain funds or security, the Board may

  • (a) order the company to use the funds or security to pay for the abandonment of its pipelines or the costs and expenses related to its abandoned pipelines; or

  • (b) withdraw the funds or realize the security to pay for that abandonment or pay those costs and expenses.

Inspection Officers

Marginal note:Designation of inspection officers

• 49 (1) The Board may designate any person as an inspection officer for the purpose of ensuring

  • (a) the safety and security of the public and of a company’s employees;

  • (b) the protection of property and the environment;

  • (b.1) the safety and security of pipelines and abandoned pipelines;

  • (c) compliance with this Part and Part III.1, any orders made, or permits and certificates issued, by the Board under those Parts and any regulations made under section 48; and

  • (d) compliance with section 112 and any orders and regulations made under section 58.33 or 112.

• Marginal note:Powers of officers

  (2) For the purpose described in subsection (1), an inspection officer may at any reasonable time

  • (a) have access to and inspect

    • (i) any lands or pipeline, including a pipeline that is under construction, or any abandoned pipeline,

    • (ii) any ground disturbance within the area prescribed under subsection 112(5), and

    • (iii) any facility being constructed across, on, along or under the pipeline;

  • (b) direct a company or person whose activity causes a ground disturbance or who is constructing a facility described in paragraph (a)

    • (i) to perform any tests that the inspection officer considers necessary for an inspection, and

    • (ii) to provide information orally or in writing; and

  • (c) examine and make copies of any information contained in any books, records or documents, or in any computer systems, that the inspector believes on reasonable grounds contain any information relating to the design, construction, operation, maintenance or abandonment of a pipeline or to the maintenance of an abandoned pipeline.

• Marginal note:Compliance audit

  (3) For greater certainty, the powers set out in subsection (2) include the power to conduct a compliance audit.

Marginal note:Certificate of authority

50 The Board shall provide every inspection officer with a certificate of authority and, when carrying out duties under this Part, the inspection officer shall show the certificate to any person who asks to see it.

Marginal note:Assistance to officers

51 Any officer, employee, agent or mandatary of a company and any person whose activity causes a ground disturbance or who is constructing a facility described in paragraph 49(2)(a) shall give an inspection officer all reasonable assistance to enable the officer to carry out their duties under this Part.

Marginal note:Grounds for making order

• 51.1 (1) An inspection officer who is expressly authorized by the Board to make orders under this section may make an order if the inspection officer has reasonable grounds to believe that a hazard to the safety or security of the public or of employees of a company or a detriment to property or the environment is being or will be caused by

  • (a) the construction, operation, maintenance or abandonment of a pipeline, or any part of a pipeline;

  • (a.1) an abandoned pipeline or any part of it; or

  • (b) a ground disturbance or the construction of a facility described in paragraph 49(2)(a).

• Marginal note:Terms of order

  (2) The order may require

  • (a) work associated with the pipeline, abandoned pipeline, ground disturbance or facility to be suspended until

    • (i) the hazardous or detrimental situation has been remedied to the satisfaction of an inspection officer, or

    • (ii) the order is stayed or rescinded under section 51.2; and

  • (b) the company, any person taking any action or measure with respect to the pipeline or the abandoned pipeline, any person responsible for the ground disturbance or any person involved in the construction of the facility to take any measure specified in the order to ensure the safety or security of the public or of employees of the company or to protect property or the environment.

• Marginal note:Notice and report

  (3) An inspection officer who makes an order under this section shall, as soon as possible,

  • (a) give written notice of the order to the persons to whom it is directed, including the terms of the order and a statement of the reasons for the order; and

  • (b) report the circumstances and terms of the order to the Board.

Marginal note:Request for review

• 51.2 (1) A person to whom an order under section 51.1 is directed may request in writing that the Board review the order.

• Marginal note:Stay of order

  (2) A request for review does not operate as a stay of the order, but the Board may grant a stay pending the review.

• Marginal note:Review and decision

  (3) The Board shall

  • (a) review the circumstances and terms of an order that it is requested to review;

  • (b) confirm, vary or rescind the order; and

  • (c) give notice of its decision to the persons who requested the review.

Marginal note:Information confidential

51.3 No inspection officer shall disclose to any person any information regarding any secret process or trade secret obtained while performing duties under this Part, except for the purposes of this Part or as required by law.

Marginal note:Offence and punishment

• 51.4 (1) Every person who contravenes section 51 or fails to comply with an order under section 51.1 is guilty of an offence and is liable

  • (a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or

  • (b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

• Marginal note:Defence — no notice

  (2) No person shall be found guilty of an offence for failing to comply with an order under section 51.1 unless the person was given written notice of the order in accordance with paragraph 51.1(3)(a).

• Marginal note:Application of subsections 121(2) to (5)

  (3) Subsections 121(2) to (5) apply, with such modifications as the circumstances require, in respect of an offence under this section.

Certificates

Marginal note:Report

• 52 (1) If the Board is of the opinion that an application for a certificate in respect of a pipeline is complete, it shall prepare and submit to the Minister, and make public, a report setting out

  • (a) its recommendation as to whether or not the certificate should be issued for all or any portion of the pipeline, taking into account whether the pipeline is and will be required by the present and future public convenience and necessity, and the reasons for that recommendation; and

  • (b) regardless of the recommendation that the Board makes, all the terms and conditions that it considers necessary or desirable in the public interest to which the certificate will be subject if the Governor in Council were to direct the Board to issue the certificate, including terms or conditions relating to when the certificate or portions or provisions of it are to come into force.

• Marginal note:Factors to consider

  (2) In making its recommendation, the Board shall have regard to all considerations that appear to it to be directly related to the pipeline and to be relevant, and may have regard to the following:

  • (a) the availability of oil, gas or any other commodity to the pipeline;

  • (b) the existence of markets, actual or potential;

  • (c) the economic feasibility of the pipeline;

  • (d) the financial responsibility and financial structure of the applicant, the methods of financing the pipeline and the extent to which Canadians will have an opportunity to participate in the financing, engineering and construction of the pipeline; and

  • (e) any public interest that in the Board’s opinion may be affected by the issuance of the certificate or the dismissal of the application.

• Marginal note:Environmental assessment

  (3) If the application relates to a designated project within the meaning of section 2 of the Canadian Environmental Assessment Act, 2012, the report must also set out the Board’s environmental assessment prepared under that Act in respect of that project.

• Marginal note:Time limit

  (4) The report must be submitted to the Minister within the time limit specified by the Chairperson. The specified time limit must be no longer than 15 months after the day on which the applicant has, in the Board’s opinion, provided a complete application. The Board shall make the time limit public.

• Marginal note:Excluded period

  (5) If the Board requires the applicant to provide information or undertake a study with respect to the pipeline and the Board, with the Chairperson’s approval, states publicly that this subsection applies, the period that is taken by the applicant to comply with the requirement is not included in the calculation of the time limit.

• Marginal note:Public notice of excluded period

  (6) The Board shall make public the dates of the beginning and ending of the period referred to in subsection (5) as soon as each of them is known.

• Marginal note:Extension

  (7) The Minister may, by order, extend the time limit by a maximum of three months. The Governor in Council may, on the recommendation of the Minister, by order, further extend the time limit by any additional period or periods of time.

• Marginal note:Minister’s directives

  (8) To ensure that the report is prepared and submitted in a timely manner, the Minister may, by order, issue a directive to the Chairperson that requires the Chairperson to

  • (a) specify under subsection (4) a time limit that is the same as the one specified by the Minister in the order;

  • (b) issue a directive under subsection 6(2.1), or take any measure under subsection 6(2.2), that is set out in the order; or

  • (c) issue a directive under subsection 6(2.1) that addresses a matter set out in the order.

• Marginal note:Order binding

  (9) Orders made under subsection (7) are binding on the Board and those made under subsection (8) are binding on the Chairperson.

• Marginal note:Publication

  (10) A copy of each order made under subsection (8) must be published in the Canada Gazette within 15 days after it is made.

• Marginal note:Report is final and conclusive

  (11) Subject to sections 53 and 54, the Board’s report is final and conclusive.

Marginal note:Order to reconsider

• 53 (1) After the Board has submitted its report under section 52, the Governor in Council may, by order, refer the recommendation, or any of the terms and conditions, set out in the report back to the Board for reconsideration.

• Marginal note:Factors and time limit

  (2) The order may direct the Board to conduct the reconsideration taking into account any factor specified in the order and it may specify a time limit within which the Board shall complete its reconsideration.

• Marginal note:Order binding

  (3) The order is binding on the Board.

• Marginal note:Publication

  (4) A copy of the order must be published in the Canada Gazette within 15 days after it is made.

• Marginal note:Obligation of Board

  (5) The Board shall, before the expiry of the time limit specified in the order, if one was specified, reconsider its recommendation or any term or condition referred back to it, as the case may be, and prepare and submit to the Minister a report on its reconsideration.

• Marginal note:Contents of report

  (6) In the reconsideration report, the Board shall

  • (a) if its recommendation was referred back, either confirm the recommendation or set out a different recommendation; and

  • (b) if a term or condition was referred back, confirm the term or condition, state that it no longer supports it or replace it with another one.

• Marginal note:Terms and conditions

  (7) Regardless of what the Board sets out in the reconsideration report, the Board shall also set out in the report all the terms and conditions, that it considers necessary or desirable in the public interest, to which the certificate would be subject if the Governor in Council were to direct the Board to issue the certificate.

• Marginal note:Report is final and conclusive

  (8) Subject to section 54, the Board’s reconsideration report is final and conclusive.

• Marginal note:Reconsideration of report under this section

  (9) After the Board has submitted its report under subsection (5), the Governor in Council may, by order, refer the Board’s recommendation, or any of the terms or conditions, set out in the report, back to the Board for reconsideration. If it does so, subsections (2) to (8) apply.

Marginal note:Order regarding issuance or non-issuance

• 54 (1) After the Board has submitted its report under section 52 or 53, the Governor in Council may, by order,

  • (a) direct the Board to issue a certificate in respect of the pipeline or any part of it and to make the certificate subject to the terms and conditions set out in the report; or

  • (b) direct the Board to dismiss the application for a certificate.

• Marginal note:Reasons

  (2) The order must set out the reasons for making the order.

• Marginal note:Time limit

  (3) The order must be made within three months after the Board’s report under section 52 is submitted to the Minister. The Governor in Council may, on the recommendation of the Minister, by order, extend that time limit by any additional period or periods of time. If the Governor in Council makes an order under subsection 53(1) or (9), the period that is taken by the Board to complete its reconsideration and to report to the Minister is not to be included in the calculation of the time limit.

• Marginal note:Order is final and conclusive

  (4) Every order made under subsection (1) or (3) is final and conclusive and is binding on the Board.

• Marginal note:Obligation of Board

  (5) The Board shall comply with the order made under subsection (1) within seven days after the day on which it is made.

• Marginal note:Publication

  (6) A copy of the order made under subsection (1) must be published in the Canada Gazette within 15 days after it is made.

Marginal note:Application for judicial review

• 55 (1) Judicial review by the Federal Court of Appeal with respect to any order made under subsection 54(1) is commenced by making an application for leave to the Court.

• Marginal note:Application

  (2) The following rules govern an application under subsection (1):

  • (a) the application must be filed in the Registry of the Federal Court of Appeal (“the Court”) within 15 days after the day on which the order is published in the Canada Gazette;

  • (b) a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice; and

  • (c) a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance.

Marginal note:Continuation of jurisdiction and obligation

• 55.1 (1) A failure by the Board to comply with subsection 52(1) or 53(5) within the required time limit does not affect its jurisdiction to deal with the application or its obligation to submit the report, and anything done by it in relation to the application remains valid.

• Marginal note:Governor in Council’s powers

  (2) Despite subsection 54(3), the Governor in Council may make an order under subsection 54(1) after the expiry of the time limit for doing so.

Marginal note:Representations

55.2 On an application for a certificate, the Board shall consider the representations of any person who, in the Board’s opinion, is directly affected by the granting or refusing of the application, and it may consider the representations of any person who, in its opinion, has relevant information or expertise. A decision of the Board as to whether it will consider the representations of any person is conclusive.

Revocation and Suspension

Marginal note:Revocation or suspension of certificate

• 56 (1) Subject to subsection (2), the Board may, by order, with the approval of the Governor in Council, revoke or suspend a certificate if any term or condition thereof has not been complied with or has been contravened.

• Marginal note:Notice and hearing

  (2) No order shall be made under subsection (1) unless notice of the alleged non-compliance or contravention has been given to the holder of the certificate and the Board has afforded the holder an opportunity of being heard.

• Marginal note:Revocation or suspension on application, etc., of holder

  (3) Notwithstanding subsections (1) and (2), the Board may, by order, revoke or suspend a certificate on the application or with the consent of the holder thereof.

Conditions to Certificate

Marginal note:Compliance

57 Every certificate is subject to the condition that the provisions of this Act and the regulations in force at the date of issue of the certificate and as subsequently enacted, made or amended, as well as every order made under the authority of this Act, will be complied with.

Exemptions

Marginal note:Exempting orders respecting pipelines, etc.

• 58 (1) The Board may make orders exempting

  • (a) pipelines or branches of or extensions to pipelines, not exceeding in any case forty kilometres in length, and

  • (b) any tanks, reservoirs, storage facilities, pumps, racks, compressors, loading facilities, interstation systems of communication by telephone, telegraph or radio, and real and personal property, or immovable and movable, and works connected to them, that the Board considers proper,

  from any or all of the provisions of sections 29 to 33 and 47.

• (2) [Repealed, 1990, c. 7, s. 22]

• Marginal note:Terms

  (3) In any order made under this section the Board may impose such terms and conditions as it considers proper.

• Marginal note:Time limit

  (4) If an application for an order under subsection (1) is made, the Board shall, within the time limit specified by the Chairperson, either make an order under that subsection or dismiss the application.

• Marginal note:Maximum time limit and obligation to make it public

  (5) The time limit specified by the Chairperson must be no longer than 15 months after the day on which the applicant has, in the opinion of the Board, provided a complete application. The Board shall make the time limit public.

• Marginal note:Environmental assessment

  (6) If the application relates to a designated project within the meaning of section 2 of the Canadian Environmental Assessment Act, 2012, the Board shall also, within the time limit,

  • (a) prepare a report, as required by paragraph 22(b) of that Act, with respect to its environmental assessment of the designated project; and

  • (b) comply with subsections 27(1) and 54(1) of that Act with respect to that assessment.

• Marginal note:Excluded period — applicant

  (7) If the Board requires the applicant to provide information or undertake a study with respect to the pipeline or anything referred to in paragraph (1)(b) to which the application relates and the Board, with the Chairperson’s approval, states publicly that this subsection applies, the period that is taken by the applicant to comply with the requirement is not included in the calculation of the time limit.

• Marginal note:Public notice of excluded period

  (8) The Board shall make public the dates of the beginning and ending of the period referred to in subsection (7) as soon as each of them is known.

• Marginal note:Excluded period — Governor in Council

  (9) If the Board has referred a matter to the Governor in Council under subsection 52(2) of the Canadian Environmental Assessment Act, 2012, the period that begins on the day on which the reference is made and ends on the day on which the Governor in Council makes a decision in relation to the matter is not included in the calculation of the time limit.

• Marginal note:Extension

  (10) The Minister may, by order, extend the time limit by a maximum of three months. The Governor in Council may, on the recommendation of the Minister, by order, further extend the time limit by any additional period or periods of time.

• Marginal note:Continuation of jurisdiction and obligation

  (11) A failure by the Board to comply with subsection (4) within the required time limit does not affect its jurisdiction to deal with the application or its obligation to make the order or to dismiss the application, and anything done by it in relation to the application remains valid.

PART III.1Construction and Operation of Power Lines

International Power Lines

Marginal note:Prohibition

58.1 No person shall construct or operate a section or part of an international power line except under and in accordance with a permit issued under section 58.11 or a certificate issued under section 58.16.

Permits

Marginal note:Issuance

• 58.11 (1) Except in the case of an international power line designated by order of the Governor in Council under section 58.15 or in respect of which an election is made under section 58.23, the Board shall, on application to it and without holding a public hearing, issue a permit authorizing the construction and operation of an international power line.

• Marginal note:Information

  (2) The application must be accompanied by the information that under the regulations is to be furnished in connection with the application.

Marginal note:Publication

• 58.12 (1) The applicant shall publish a notice of the application in the Canada Gazette and such other publications as the Board considers appropriate.

• Marginal note:Waiver

  (2) The Board may waive the requirement to publish a notice referred to in subsection (1) if the Board considers that there is a critical shortage of electricity caused by terrorist activity within the meaning of subsection 83.01(1) of the Criminal Code.

Marginal note:Further information

58.13 The Board may, within a reasonable time after the publication of the notice, require the applicant to furnish such information, in addition to that required to accompany the application, as the Board considers necessary to determine whether to make a recommendation pursuant to section 58.14.

Marginal note:Delay of issuance

• 58.14 (1) The Board may make a recommendation to the Minister, which it shall make public, that an international power line be designated by order of the Governor in Council under section 58.15, and may delay issuing a permit during such period as is necessary for the purpose of making such an order.

• Marginal note:Criteria

  (2) In determining whether to make a recommendation, the Board shall seek to avoid the duplication of measures taken in respect of the international power line by the applicant and the government of any province through which the line is to pass, and shall have regard to all considerations that appear to it to be relevant, including

  • (a) the effect of the power line on provinces other than those through which the line is to pass;

  • (b) the impact of the construction or operation of the power line on the environment; and

  • (c) such considerations as may be specified in the regulations.

Certificates

Marginal note:Where certificate required

• 58.15 (1) The Governor in Council may make orders

  • (a) designating an international power line as an international power line that is to be constructed and operated under and in accordance with a certificate issued under section 58.16; and

  • (b) revoking any permit issued in respect of the line.

• Marginal note:Exception

  (2) No order may be made under subsection (1) in respect of a line more than forty-five days after the issuance of a permit in respect of the line.

• Marginal note:Effect of order

  (3) Where an order is made under subsection (1),

  • (a) no permit shall be issued in respect of the line; and

  • (b) any application in respect of the line shall be dealt with as an application for a certificate.

Marginal note:Issuance

• 58.16 (1) The Board may, subject to section 24 and to the approval of the Governor in Council, issue a certificate in respect of

  • (a) an international power line in relation to which an order made under section 58.15 is in force,

  • (b) an international power line in relation to which an election is filed under section 58.23, or

  • (c) an interprovincial power line in relation to which an order made under section 58.4 is in force,

  if the Board is satisfied that the line is and will be required by the present and future public convenience and necessity.

• Marginal note:Criteria

  (2) In deciding whether to issue a certificate, the Board shall have regard to all considerations that appear to it to be directly related to the line and relevant.

• Marginal note:Revocation of permit

  (3) Any permit issued in respect of an international power line in relation to which an order made under section 58.15 is in force and that is not revoked by the order is revoked on the Board’s deciding not to issue a certificate in respect of the line.

• Marginal note:Time limit

  (4) The Board shall, within the time limit specified by the Chairperson,

  • (a) decide that the certificate should be issued and recommend to the Minister that the Governor in Council approve the issuance of the certificate; or

  • (b) decide that no certificate is to be issued and dismiss the application in respect of the line.

• Marginal note:Maximum time limit and obligation to make it public

  (5) The time limit specified by the Chairperson must be no longer than 15 months after the day on which the applicant has, in the Board’s opinion, provided a complete application. The Board shall make the time limit public.

• Marginal note:Environmental assessment

  (6) If the application relates to a designated project within the meaning of section 2 of the Canadian Environmental Assessment Act, 2012, the Board shall also, within the time limit,

  • (a) prepare a report, as required by paragraph 22(b) of that Act, with respect to its environmental assessment of the designated project; and

  • (b) comply with subsection 27(1) of that Act with respect to that assessment.

• Marginal note:Excluded period

  (7) If the Board requires the applicant to provide information or undertake a study with respect to the line and the Board, with the Chairperson’s approval, states publicly that this subsection applies, the period that is taken by the applicant to comply with the requirement is not included in the calculation of the time limit.

• Marginal note:Public notice of excluded period

  (8) The Board shall make public the dates of the beginning and ending of the period referred to in subsection (7) as soon as each of them is known.

• Marginal note:Extension

  (9) The Minister may, by order, extend the time limit by a maximum of three months. The Governor in Council may, on the recommendation of the Minister, by order, further extend the time limit by any additional period or periods of time.

• Marginal note:Time limit — Governor in Council

  (10) If the Board makes the recommendation referred to in paragraph (4)(a), the Governor in Council may, within three months after the making of that recommendation, either approve the issuance of the certificate or refuse to approve its issuance. The Governor in Council may extend the time limit for doing so for any additional period or periods of time.

• Marginal note:Obligation of Board

  (11) If the Governor in Council approves the issuance of the certificate, the Board shall, within seven days after the day on which the approval was given, issue the certificate and comply with subsection 54(1) of the Canadian Environmental Assessment Act, 2012.

• Marginal note:Continuation of jurisdiction and obligation

  (12) A failure by the Board to comply with subsection (4) within the required time limit does not affect its jurisdiction to deal with the application or its obligation to make a decision as to whether a certificate should be issued or to dismiss the application, and anything done by it in relation to the application remains valid.

• Marginal note:Governor in Council’s power

  (13) Despite subsection (10), the Governor in Council may approve the issuance of the certificate or refuse to approve its issuance after the expiry of the time limit for doing so.

Location and Construction under Provincial Law

Marginal note:Provincial regulatory agency

58.17 The lieutenant governor in council of a province may designate as the provincial regulatory agency the lieutenant governor in council of the province, a provincial minister of the Crown or any other person or a board, commission or other tribunal.

Marginal note:Application

58.18 Sections 58.2 and 58.21 apply only in respect of those portions of international power lines that are within a province in which a provincial regulatory agency is designated under section 58.17 but do not apply in the case of international power lines in respect of which an election is filed under section 58.23.

Marginal note:Definition of provincial laws

58.19 For the purposes of sections 58.2, 58.21 and 58.22, a law of a province is in relation to lines for the transmission of electricity from a place in the province to another place in the province if the law is in relation to any of the following matters:

• (a) the determination of their location or detailed route;

• (b) the acquisition of land required for the purposes of those lines, including its acquisition by expropriation, the power to so acquire land and the procedure for so acquiring it;

• (c) assessments of their impact on the environment;

• (d) the protection of the environment against, and the mitigation of the effects on the environment of, those lines; or

• (e) their construction and operation and the procedure to be followed in abandoning their operation.

Marginal note:Application of provincial laws

58.2 The laws from time to time in force in a province in relation to lines for the transmission of electricity from a place in the province to another place in that province apply in respect of those portions of international power lines that are within that province.

Marginal note:Incorporation of provincial functions

58.21 A provincial regulatory agency designated under section 58.17 has, in respect of those portions of international power lines that are within that province, the powers and duties that it has under the laws of the province in respect of lines for the transmission of electricity from a place in the province to another place in that province, including a power or duty to refuse to approve any matter or thing for which the approval of the agency is required, even though the result of the refusal is that the line cannot be constructed or operated.

Marginal note:Paramountcy

58.22 Terms and conditions of permits and certificates and Acts of Parliament of general application are, for the purpose of applying the laws of a province under section 58.2 or 58.21, paramount to those laws.

Location and Construction under Federal Law

Marginal note:Election

58.23 The applicant for or holder of a permit or certificate may file with the Board in the form prescribed by the regulations an election that the provisions of this Act referred to in section 58.27 and not the laws of a province described in section 58.19 apply in respect of the existing or proposed international power line.

Marginal note:Application

58.24 Sections 58.26 and 58.27 apply only in respect of

• (a) international power lines in respect of which an election is filed under section 58.23;

• (b) those portions of international power lines that are within a province in which no provincial regulatory agency is designated under section 58.17; and

• (c) interprovincial power lines in respect of which an order made under section 58.4 is in force.

Marginal note:Effect of election

• 58.25 (1) Where an election is filed under section 58.23,

  • (a) no permit shall be issued in respect of the line;

  • (b) any application in respect of the line shall be dealt with as an application for a certificate; and

  • (c) any permit or certificate issued in respect of the line is thereupon revoked.

• Marginal note:Liability

  (2) An applicant for or holder of a permit or certificate who files an election under section 58.23 and who, at the time of the election, is proceeding under the laws of a province to acquire land for the purpose of constructing or operating the international power line is liable to each person who has an interest in the land or, in the Province of Quebec, a right in the land, for all damages suffered and reasonable costs incurred in consequence of the abandonment of the acquisition.

• Marginal note:Idem

  (3) An action for damages and costs referred to in subsection (2) may be brought in any court of competent jurisdiction in the province in which the land is situated.

Marginal note:Prohibition

58.26 No person shall begin the construction of a section or part of an international or interprovincial power line until

• (a) the plan, profile and book of reference of the section or part are approved by the Board; and

• (b) copies of the plan, profile and book of reference so approved, duly certified as such by the Secretary, are deposited in the offices of the registrars of deeds for the districts or counties through which the section or part is to pass.

Marginal note:Application of certain provisions

• 58.27 (1) Sections 32 to 45 and 48 to 51.3 and Part V, except sections 74, 76 to 78, 108 to 111.3, 112, 114 and 115, apply in respect of international and interprovincial power lines referred to in section 58.24 as if each reference in any of those provisions to

  • (a) a “company” were a reference to the applicant for or holder of the permit or certificate issued in respect of the line;

  • (b) a “pipeline” or “line” were a reference to the international or interprovincial power line; and

  • (c) “hydrocarbons” were a reference to electricity.

• Marginal note:Application of section 45 — navigable waters

  (2) If a deviation, change or alteration is required to be made to a portion of an international power line by the holder of a permit or certificate issued in respect of the power line and the deviation, change or alteration passes in, on, over, under, through or across a navigable water, section 45 also applies to that portion of the power line as if each reference in that section to

  • (a) a “company” were a reference to the holder of the permit or certificate; and

  • (b) a “pipeline” were a reference to the international power line.

Marginal note:Application of certain provisions

58.271 Sections 32 to 45 and 48 to 51.3 and Part V, except sections 74, 76 to 78, 108 to 111.3, 112, 114 and 115, apply in respect of international power lines in respect of which a certificate was issued before June 1, 1990, or an order was made under subsection 58(2) as that subsection read before that date, as if each reference in any of those provisions to

• (a) a “company” were a reference to the applicant for or holder of the certificate issued in respect of the line or the person who operates the line in respect of which the order was made;

• (b) a “pipeline” or “line” were a reference to the international power line; and

• (c) “hydrocarbons” were a reference to electricity.

Marginal note:Exception

58.272 For the purposes of sections 58.27 and 58.271, in the provisions referred to in those sections, a reference to an “abandoned pipeline” is not a reference to an abandoned international or interprovincial power line.

Diversions, Relocations, Crossings and Abandonments

Marginal note:Construction — facility

• 58.28 (1) Subject to subsection (4), no person shall construct an international or interprovincial power line that passes on, over, along or under a facility unless a permit referred to in section 58.11, or a certificate, has been issued in respect of the power line and

  • (a) the permit or certificate contains a term or condition relating to that facility;

  • (b) the person has been granted leave under subsection (2); or

  • (c) the person is constructing the power line in circumstances specified in an order or regulation made under subsection (4).

• Marginal note:Authority to grant leave

  (2) The Board may, by order, on application, grant a person leave to construct an international or interprovincial power line that passes on, over, along or under a facility. It may require from the applicant any plans, profiles and other information that it considers necessary to consider the application.

• Marginal note:Terms and conditions

  (3) The leave may be granted in whole or in part and be subject to terms and conditions.

• Marginal note:Circumstances

  (4) The Board may make orders or regulations specifying circumstances for the purposes of paragraph (1)(c).

• Marginal note:Leave in emergency cases

  (5) The Board may grant leave under subsection (2) after construction of the proposed work has commenced if it is satisfied that the work was urgently required and, before the commencement of construction, it was notified of the person’s intention to proceed with the proposed work.

Marginal note:Construction or operation — navigable water

58.29 No person shall construct or operate an interprovincial power line in respect of which an order made under section 58.4 is in force — or an international power line — that passes in, on, over, under, through or across a navigable water unless a permit referred to in section 58.11 or a certificate has been issued in respect of the power line.

Marginal note:Effects on navigation

58.3 In addition to any other factor that it considers appropriate, the Board shall take into account the effects that its decision might have on navigation, including safety of navigation, when deciding whether to issue a certificate or permit, make an order, give a direction or grant a leave, approval or exemption in respect of an interprovincial power line in respect of which an order made under section 58.4 is in force — or an international power line — that passes in, on, over, under, through or across a navigable water.

Marginal note:Power lines not works

58.301 Despite the definition work in section 2 of the Navigation Protection Act, neither an interprovincial power line in respect of which an order made under section 58.4 is in force nor an international power line is a work to which that Act applies.

Marginal note:Regulations

• 58.302 (1) The Governor in Council may, for purposes related to navigation, on the joint recommendation of the Minister and the Minister of Transport, make regulations respecting sections or parts of interprovincial power lines in respect of which orders made under section 58.4 are in force — or sections or parts of international power lines — that pass in, on, over, under, through or across a navigable water, including regulations respecting

  • (a) their design, construction or operation;

  • (b) the making of deviations, changes or alterations to them;

  • (c) their diversion or relocation;

  • (d) the safety and security of their operation; and

  • (e) the abandonment of their operation.

• Marginal note:Offence

  (2) Every person who contravenes a regulation made under subsection (1) is guilty of an offence punishable on summary conviction.

Marginal note:Application

• 58.303 (1) Sections 58.28, 58.31 and 58.32 apply only in respect of

  • (a) international power lines in respect of which an election is filed under section 58.23;

  • (b) those portions of international power lines that are within a province in which no provincial regulatory agency is designated under section 58.17;

  • (c) international power lines where the facility in question is within the legislative authority of Parliament; and

  • (d) interprovincial power lines in respect of which an order made under section 58.4 is in force.

• Marginal note:Application of section 58.31 — navigable waters

  (2) Section 58.31 also applies in respect of the portion of an international power line for which a permit or certificate is in force that passes in, on, over, under, through or across a navigable water.

• Marginal note:Application of section 58.32 — navigable waters

  (3) Section 58.32 also applies in respect of an international power line for which a permit or certificate is in force if the Board is of the opinion that the diversion or relocation of the power line in, on, over, under, through or across a navigable water is necessary to facilitate the construction, reconstruction or relocation of a facility.

Marginal note:Existing terms and conditions

• 58.304 (1) Terms and conditions in respect of any international or interprovincial power line that were, at any time before the coming into force of this section, imposed under section 58.29 or 108, as that section read from time to time before the coming into force of this section — or imposed by the Minister of Transport under the Navigation Protection Act — apply as if they were terms and conditions set out in the certificate or permit, as the case may be, issued in respect of the power line.

• Marginal note:Construction without leave

  (2) If, at any time before the coming into force of this section, the Minister of Transport had provided, under section 58.3 or 108, as that section read from time to time before the coming into force of this section, that leave under that section 58.3 or 108, as the case may be, was not necessary because the power line was to be constructed in accordance with certain orders, regulations, plans and specifications, no person shall construct the power line otherwise than in accordance with those orders, regulations, plans and specifications or as specified by the Board.

• Marginal note:Construction without leave

  (3) If, at any time before the coming into force of this section, the Board had provided, under section 58.33 or 108, as that section read from time to time before the coming into force of this section, that leave under section 58.29 or 108, as the case may be, as that section read from time to time before the coming into force of this section, was not necessary because the power line was to be constructed in accordance with certain orders or regulations, no person shall construct the power line otherwise than in accordance with those orders or regulations or as specified by the Board.

Marginal note:Offence and punishment

• 58.305 (1) Every person who contravenes subsection 58.28(1), section 58.29 or subsection 58.304(2) or (3) is guilty of an offence and is liable

  • (a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or

  • (b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

• Marginal note:Application of subsections 121(2) to (5)

  (2) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, in respect of an offence under this section.

Marginal note:Other facilities crossing power lines

• 58.31 (1) Subject to section 58.33, no person shall, unless leave is first obtained from the Board, construct a facility across, on, along or under an international or interprovincial power line or excavate using power-operated equipment or explosives within thirty metres of such a line.

• Marginal note:Use of vehicles and mobile equipment

  (2) Subject to section 58.33, no person shall operate a vehicle or mobile equipment across an international or interprovincial power line unless leave is first obtained from the holder of the permit or certificate issued in respect of the line or the vehicle or mobile equipment is operated within the travelled portion of a highway or public road.

• Marginal note:Terms and conditions

  (3) The Board may, on granting an application for leave under this section, impose such terms and conditions as it considers proper.

• Marginal note:Directions

  (4) The Board may direct the owner of a facility constructed across, on, along or under a power line in contravention of this Act or the Board’s orders or regulations to do such things as the Board considers necessary for the safety or security of the power line and may, if the Board considers that the facility may impair the safety or security of the operation of the power line, direct the owner to reconstruct, alter or remove the facility.

Marginal note:Diversions and relocations

• 58.32 (1) The Board may, on such terms and conditions as it considers proper, direct the holder of a permit or certificate issued in respect of an international or interprovincial power line to divert or relocate the power line if the Board is of the opinion that the diversion or relocation is necessary to facilitate the construction, reconstruction or relocation of a facility.

• Marginal note:Costs of diversion or relocation

  (2) The Board may direct by whom and to whom the costs of the diversion or relocation shall be paid.

• Marginal note:Procedures

  (3) The Board shall not make a direction under subsection (1) unless the procedures set out in sections 34 to 38 have been complied with in respect of the section or part to be diverted or relocated.

• Marginal note:Idem

  (4) The Board may order the holder of a permit or certificate issued in respect of an international or interprovincial power line to carry out such of the procedures set out in sections 34 to 38 as the holder would be required to carry out if the holder had prepared and submitted to the Board a plan, profile and book of reference pursuant to subsection 33(1).

• Marginal note:Application of certain provisions

  (5) Sections 34 to 38 apply in respect of any matter related to the carrying out of the procedures set out in those sections as if each reference in those sections to

  • (a) a “company” were a reference to the holder of the permit or certificate issued in respect of the international or interprovincial power line; and

  • (b) a “pipeline” were a reference to the international or interprovincial power line.

• Marginal note:Costs of representations to Board

  (6) The Board may fix such amount as it considers reasonable in respect of the actual costs reasonably incurred by any person who made representations to the Board under this section and may direct by whom and to whom the amount so fixed shall be paid.

Marginal note:Orders and regulations

58.33 The Board may make orders or regulations governing

• (a) the design, construction, operation and abandonment of facilities constructed across, on, along or under power lines;

• (b) the measures to be taken by any person in relation to

  • (i) the construction of facilities across, on, along or under power lines,

  • (ii) the construction of power lines across, on, along or under facilities, other than railways, and

  • (iii) excavations within thirty metres of power lines; and

• (c) the circumstances in which or conditions under which leave from the Board under section 58.31 is not necessary.

Marginal note:Temporary prohibition on excavating

• 58.331 (1) Without limiting the generality of paragraph 58.33(c), orders or regulations made under that paragraph may provide for the prohibition of excavations in an area that may extend beyond 30 m of an international or interprovincial power line during the period that starts on the day on which a request to locate the line is made to the holder of the permit or certificate issued in respect of the line and ends

  • (a) at the end of the third working day after the day on which the request is made; or

  • (b) at any later time that is agreed to between the holder and the person making the request.

• Marginal note:Exemptions

  (2) The Board may, by order made on any terms and conditions that the Board considers appropriate, exempt any person from the application of an order or regulation made under section 58.33.

• Marginal note:Inspection officers

  (3) The provisions of sections 49 to 51.3 relating to inspection officers apply for the purpose of ensuring compliance with section 58.31 and orders and regulations made under section 58.33 as if each reference in any of those provisions to

  • (a) a “pipeline” were a reference to an international or interprovincial power line;

  • (b) a “company” were a reference to the holder of a permit or certificate issued in respect of an international or interprovincial power line or the person who operates an international or interprovincial power line in respect of which an order was made under subsection 58(2) as that section read before June 1, 1990;

  • (c) a “ground disturbance” were a reference to an excavation activity;

  • (d) “within the area prescribed under subsection 112(5)” were a reference to within 30 m of the line; and

  • (e) “whose activity causes a ground disturbance” were a reference to conducting an excavation activity.

• Marginal note:Exception

  (4) For the purposes of subsection (3), in the provisions referred to in that subsection, a reference to an “abandoned pipeline” is not a reference to an abandoned international or interprovincial power line.

• Marginal note:Offence

  (5) Every person who contravenes subsection 58.31(1) or (2), a direction made under subsection 58.31(4) or an order or regulation made under section 58.33 is guilty of an offence and liable

  • (a) on conviction on indictment, to a fine of not more than one million dollars or to imprisonment for a term of not more than five years or to both; or

  • (b) on summary conviction, to a fine of not more than $100,000 or to imprisonment for a term of not more than one year or to both.

• Marginal note:Application of subsections 121(2) to (5)

  (6) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, to an offence under subsection (5).

Marginal note:Abandonment

• 58.34 (1) No person shall, without the leave of the Board, abandon the operation of an international power line or any interprovincial power line designated by an order under section 58.4.

• Marginal note:Leave to abandon

  (2) The Board may, on the application of the holder of a permit or certificate, grant leave to abandon the operation of the line.

Permits and Certificates

Marginal note:Terms and conditions

• 58.35 (1) The Board may, on the issuance of a permit, make the permit subject to such terms and conditions respecting the matters prescribed by the regulations as the Board considers necessary or desirable in the public interest.

• Marginal note:Idem

  (2) The Board may, on the issuance of a certificate, make the certificate subject to such terms and conditions as the Board considers necessary or desirable in the public interest.

Marginal note:Compliance

58.36 Every permit and certificate is subject to the condition that the provisions of this Act and the regulations in force on the date of the issuance of the permit or certificate and as subsequently enacted, made or amended, as well as every order made under the authority of this Act or of the laws of a province that are applicable under section 58.2, will be complied with.

Marginal note:Revocation and suspension

• 58.37 (1) The Board may revoke or suspend a permit or certificate

  • (a) on the application or with the consent of the holder of the permit or certificate; or

  • (b) where a holder of the permit or certificate has contravened or failed to comply with a term or condition of the permit or certificate.

• Marginal note:Notice

  (2) The Board shall not revoke or suspend a permit or certificate under paragraph (1)(b) unless the Board has

  • (a) sent a notice to the holder of the permit or certificate specifying the term or condition that is alleged to have been contravened or not complied with; and

  • (b) given the holder of the permit or certificate a reasonable opportunity to be heard.

Miscellaneous Provisions

Marginal note:Application of certain provisions

• 58.38 (1) Sections 76 to 78 and 114 apply in respect of international power lines and of interprovincial power lines in respect of which an order made under section 58.4 is in force as they apply in respect of pipelines.

• Marginal note:Application of references

  (2) The provisions of this Act referred to in subsection (1) apply in respect of an international power line as if each reference in those provisions to

  • (a) a “company” were a reference to the holder of the permit or certificate issued in respect of the line; and

  • (b) a “pipeline” were a reference to the international or interprovincial power line.

Marginal note:Regulations

58.39 The Governor in Council may make regulations for carrying into effect the purposes and provisions of this Part, including regulations

• (a) prescribing matters in respect of which terms and conditions of permits may be imposed;

• (b) respecting the information to be furnished in connection with applications for permits;

• (c) specifying considerations to which the Board shall have regard in deciding whether to recommend to the Minister that an international power line be designated by order of the Governor in Council under section 58.15; and

• (d) prescribing the form of elections filed under section 58.23.

Interprovincial Power Lines

Marginal note:Where certificate required

• 58.4 (1) The Governor in Council may make orders

  • (a) designating an interprovincial power line as an interprovincial power line that is to be constructed and operated under and in accordance with a certificate issued under section 58.16; or

  • (b) specifying considerations to which the Board shall have regard in deciding whether to issue such a certificate.

• Marginal note:Prohibition

  (2) No person shall construct or operate any section or part of an interprovincial power line in respect of which an order made under subsection (1) is in force except under and in accordance with a certificate issued under section 58.16.

PART IVTraffic, Tolls and Tariffs

Interpretation

Definition of tariff

58.5 In this Part, tariff means a schedule of tolls, terms and conditions, classifications, practices or rules and regulations applicable to the provision of a service by a company and includes rules respecting the calculation of tolls.

Powers of Board

Marginal note:Regulation of traffic, etc.

59 The Board may make orders with respect to all matters relating to traffic, tolls or tariffs.

Filing of Tariff

Marginal note:Tolls to be filed

• 60 (1) A company shall not charge any tolls except tolls that are

  • (a) specified in a tariff that has been filed with the Board and is in effect; or

  • (b) approved by an order of the Board.

• Marginal note:Compliance

  (2) Where gas or a commodity other than oil transmitted by a company through its pipeline is the property of the company, the company shall file with the Board, on the making thereof, true copies of all the contracts it may make for the sale of the gas or commodity and of any amendments from time to time made thereto, and the true copies so filed are deemed, for the purposes of this Part, to constitute a tariff pursuant to subsection (1).

Marginal note:Commencement of tariff

61 Where a company files a tariff with the Board and the company proposes to charge a toll referred to in paragraph (b) of the definition toll in section 2, the Board may establish the day on which the tariff is to come into effect and the company shall not commence to charge the toll before that day.

Just and Reasonable Tolls

Marginal note:Tolls to be just and reasonable

62 All tolls shall be just and reasonable, and shall always, under substantially similar circumstances and conditions with respect to all traffic of the same description carried over the same route, be charged equally to all persons at the same rate.

Marginal note:Board determinations

63 The Board may determine, as questions of fact, whether or not traffic is or has been carried under substantially similar circumstances and conditions referred to in section 62, whether in any case a company has or has not complied with the provisions of that section, and whether there has, in any case, been unjust discrimination within the meaning of section 67.

Marginal note:Interim tolls

64 Where the Board has made an interim order authorizing a company to charge tolls until a specified time or the happening of a specified event, the Board may, in any subsequent order, direct the company

• (a) to refund, in a manner satisfactory to the Board, such part of the tolls charged by the company under the interim order as is in excess of the tolls determined by the Board to be just and reasonable, together with interest on the amount so refunded; or

• (b) to recover in its tolls, in a manner satisfactory to the Board, the amount by which the tolls determined by the Board to be just and reasonable exceed the tolls charged by the company under the interim order, together with interest on the amount so recovered.

Disallowance of Tariff

Marginal note:Disallowance of tariff

65 The Board may disallow any tariff or any portion thereof that it considers to be contrary to any of the provisions of this Act or to any order of the Board, and may require a company, within a prescribed time, to substitute a tariff satisfactory to the Board in lieu thereof, or may prescribe other tariffs in lieu of the tariff or portion thereof so disallowed.

Marginal note:Suspension of tariff

66 The Board may suspend any tariff or any portion thereof before or after the tariff goes into effect.

Discrimination

Marginal note:No unjust discrimination

67 A company shall not make any unjust discrimination in tolls, service or facilities against any person or locality.

Marginal note:Burden of proof

68 Where it is shown that a company makes any discrimination in tolls, service or facilities against any person or locality, the burden of proving that the discrimination is not unjust lies on the company.

Marginal note:No rebates, etc.

• 69 (1) A company or shipper or an officer or an employee, or an agent or a mandatary, of the company or shipper who

  • (a) offers, grants, gives, solicits, accepts or receives a rebate, concession or discrimination, or

  • (b) knowingly is party or privy to a false billing, false classification, false report or other device,

  whereby a person obtains transmission of hydrocarbons or any other commodity by a company at a rate less than that named in the tariffs then in force, is guilty of an offence punishable on summary conviction.

• Marginal note:Prosecution

  (2) No prosecution shall be instituted for an offence under this section without leave of the Board.

Contracts Limiting Liabilities

Marginal note:Contracts limiting liability of company

• 70 (1) Except as provided in this section, no contract, condition or notice made or given by a company impairing, restricting or limiting its liability in respect of the transmission of hydrocarbons or any other commodity relieves the company from its liability, unless that class of contract, condition or notice is included as a term or condition of its tariffs as filed or has been first authorized or approved by order or regulation of the Board.

• Marginal note:Board may determine limits

  (2) The Board may determine the extent to which the liability of a company may be impaired, restricted or limited as provided in this section.

• Marginal note:Terms and conditions

  (3) The Board may prescribe the terms and conditions under which hydrocarbons or any other commodity may be transmitted by a company.

Transmission, etc., of Oil or Gas

Marginal note:Duty of pipeline company

• 71 (1) Subject to such exemptions, conditions or regulations as the Board may prescribe, a company operating a pipeline for the transmission of oil shall, according to its powers, without delay and with due care and diligence, receive, transport and deliver all oil offered for transmission by means of its pipeline.

• Marginal note:Orders for transmission of commodities

  (2) The Board may, by order, on such terms and conditions as it may specify in the order, require the following companies to receive, transport and deliver, according to their powers, a commodity offered for transmission by means of a pipeline:

  • (a) a company operating a pipeline for the transmission of gas; and

  • (b) a company that has been issued a certificate under Part III authorizing the transmission of a commodity other than oil.

• Marginal note:Extension of facilities

  (3) The Board may, if it considers it necessary or desirable to do so in the public interest, require a company operating a pipeline for the transmission of hydrocarbons, or for the transmission of any other commodity authorized by a certificate issued under Part III, to provide adequate and suitable facilities for

  • (a) the receiving, transmission and delivering of the hydrocarbons or other commodity offered for transmission by means of its pipeline,

  • (b) the storage of the hydrocarbons or other commodity, and

  • (c) the junction of its pipeline with other facilities for the transmission of the hydrocarbons or other commodity,

  if the Board finds that no undue burden will be placed on the company by requiring the company to do so.

Transmission and Sale of Gas

Marginal note:Extension of services of gas pipeline companies

• 72 (1) Where the Board finds such action necessary or desirable in the public interest, it may direct a company operating a pipeline for the transmission of gas to extend or improve its transmission facilities to provide facilities for the junction of its pipeline with any facilities of, and sell gas to, any person or municipality engaged or legally authorized to engage in the local distribution of gas to the public, and for those purposes to construct branch lines to communities immediately adjacent to its pipeline, if the Board finds that no undue burden will be placed on the company thereby.

• Marginal note:Limitation on extension

  (2) Subsection (1) does not empower the Board to compel a company to sell gas to additional customers if to do so would impair its ability to render adequate service to its existing customers.

• Marginal note:Deemed toll for transmission

  (3) Where the gas transmitted by a company through its pipeline is the property of the company, the differential between the cost to the company of the gas at the point where it enters its pipeline and the amount for which the gas is sold by the company shall, for the purposes of this Part, be deemed to be a toll charged by the company to the purchaser for the transmission of that gas.

PART VPowers of Pipeline Companies

General Powers

Marginal note:Powers of company

73 A company may, for the purposes of its undertaking, subject to this Act and to any Special Act applicable to it,

• (a) enter into and on any Crown land without previous licence therefor, or into or on the land of any person, lying in the intended route of its pipeline, and make surveys, examinations or other necessary arrangements on the land for fixing the site of the pipeline, and set out and ascertain such parts of the land as are necessary and proper for the pipeline;

• (b) purchase, take and hold of and from any person any land or other property necessary for the construction, maintenance, operation and abandonment of its pipeline, or the maintenance of its abandoned pipeline, and sell or otherwise dispose of any of its land or property that has become unnecessary for the purpose of the pipeline or the abandoned pipeline;

• (c) construct, lay, carry or place its pipeline across, on or under the land of any person on the located line of the pipeline;

• (d) join its pipeline with the transmission facilities of any other person at any point on its route;

• (e) construct, erect and maintain all necessary and convenient roads, buildings, houses, stations, depots, wharves, docks and other structures, and construct, purchase and acquire machinery and other apparatus necessary for the construction, maintenance, operation and abandonment of its pipeline or the maintenance of its abandoned pipeline;

• (f) construct, maintain and operate branch lines, and for that purpose exercise all the powers, privileges and authority necessary therefor, in as full and ample a manner as for a pipeline;

• (g) alter, repair or discontinue the works mentioned in this section, or any of them, and substitute others in their stead;

• (h) transmit hydrocarbons by pipeline and regulate the time and manner in which hydrocarbons shall be transmitted, and the tolls to be charged therefor; and

• (i) do all other acts necessary for the construction, maintenance, operation and abandonment of its pipeline or the maintenance of its abandoned pipeline.

Marginal note:Limitations on purchase and sale, etc.

• 74 (1) A company shall not, without the leave of the Board,

  • (a) sell, transfer or lease to any person its pipeline, in whole or in part;

  • (b) purchase or lease any pipeline from any person;

  • (c) enter into an agreement for amalgamation with any other company; or

  • (d) abandon the operation of a pipeline.

• Definition of pipeline and company

  (2) For the purposes of paragraph (1)(b), pipeline includes a pipeline as defined in section 2 or any other pipeline, and, for the purposes of paragraph (1)(c), company includes a company as defined in section 2 or any other company.

• Marginal note:Terms and conditions — abandonment

  (2.1) The Board may, on granting leave to abandon the operation of a pipeline, impose any terms and conditions that it considers proper.

• Marginal note:Exception

  (3) Despite paragraph (1)(a), leave shall only be required if a company sells, transfers or leases any part or parts of its pipeline that are capable of being operated as a line for the transmission of gas or oil.

Marginal note:Damages and compensation

75 A company shall, in the exercise of the powers granted by this Act or a Special Act, do as little damage as possible, and shall make full compensation in the manner provided in this Act and in a Special Act, to all persons interested, for all damage sustained by them by reason of the exercise of those powers.

Marginal note:Exercise of powers outside Canada

76 A company operating a pipeline from a place in Canada to a place on the international boundary line may exercise, beyond that boundary, in so far as permitted by the laws there in force, the powers that it may exercise in Canada.

Taking and Using Lands

Marginal note:Crown lands

• 77 (1) No company shall take possession of, use or occupy lands vested in Her Majesty without the consent of the Governor in Council.

• Marginal note:Consent

  (2) A company may, with the consent of the Governor in Council and on such terms as the Governor in Council may prescribe, take and appropriate, for the use of its pipeline and works, so much of the lands of Her Majesty lying on the route of the line that have not been granted, conceded or sold, as is necessary for the pipeline, and also so much of the public beach, or bed of a lake, river or stream, or of the lands so vested covered with the waters of a lake, river or stream as is necessary for making, completing and using its pipeline and works.

• Marginal note:Compensation where lands held in trust

  (3) Where lands are vested in Her Majesty for a special purpose, or subject to a trust, the compensation money that a company pays therefor shall be held and applied by the Governor in Council for the like purpose or trust.

• Marginal note:Exceptions

  (4) Subsections (1) to (3) do not apply to any of the following:

  • (a) in the case of a pipeline:

    • (i) anything done under leave obtained under subsection 108(2) or (5) in respect of the pipeline,

    • (ii) any section or part of the pipeline that passes on, over, along or under a utility, as defined in subsection 108(6), if a certificate has been issued, or an order has been made under section 58, in respect of the pipeline and the certificate or order contains a term or condition relating to that utility,

    • (iii) any section or part of the pipeline that passes in, on, over, under, through or across a navigable water if a certificate has been issued, or an order has been made under section 58, in respect of the pipeline, and

    • (iv) anything done under any leave obtained under section 108 at any time before the coming into force of this subsection, as that section read from time to time before the coming into force of this subsection; and

  • (b) in the case of a power line to which this section applies by reason of section 58.38:

    • (i) anything done under leave obtained under subsection 58.28(2) or (5) in respect of the power line,

    • (ii) in the case of a power line that is an interprovincial power line in respect of which an order made under section 58.4 is in force,

      • (A) any section or part of the power line that passes on, over, along or under a facility if a certificate has been issued in respect of the power line and the certificate contains a term or condition relating to that facility, or

      • (B) any section or part of the power line that passes in, on, over, under, through or across a navigable water if a certificate has been issued in respect of the power line,

    • (iii) in the case of a power line that is an international power line,

      • (A) any section or part of the power line that passes on, over, along or under a facility if a permit referred to in section 58.11, or a certificate, has been issued in respect of the power line and the permit or certificate contains a term or condition relating to that facility, or

      • (B) any section or part of the power line that passes in, on, over, under, through or across a navigable water if a permit referred to in section 58.11, or a certificate, has been issued in respect of the power line, and

    • (iv) anything done under any leave obtained under section 108 at any time before the coming into force of this subsection, as that section read from time to time before the coming into force of this subsection.

Marginal note:Indian lands

• 78 (1) No company shall take possession of or occupy lands in an Indian reserve without the consent of the Governor in Council.

• Marginal note:Compensation

  (2) Where, with the consent of the Governor in Council, lands in an Indian reserve are taken possession of, used or occupied by a company, or where they are injuriously affected by the construction of a pipeline, compensation shall be made therefor as in the case of lands taken without the consent of the owner.

• Marginal note:Definition of Indian reserve

  (3) In this section, Indian reserve means

  • (a) a reserve, as defined in the Indian Act;

  • (b) Category IA-N land, as defined in subsection 2(1) of the Naskapi and the Cree-Naskapi Commission Act;

  • (b.1) Category IA land, as defined in subsection 2(2) of the Cree Nation of Eeyou Istchee Governance Agreement Act; or

  • (c) Sechelt lands, as defined in the Sechelt Indian Band Self-Government Act, chapter 27 of the Statutes of Canada, 1986.

Marginal note:Settlement land

• 78.1 (1) No company shall, if the Yukon first nation concerned does not consent thereto, take possession of or occupy settlement land as defined in section 2 of the Yukon Surface Rights Board Act without the consent of the Governor in Council.

• Marginal note:Tetlit Gwich’in Yukon land

  (2) No company shall, if the Gwich’in Tribal Council does not consent thereto, take possession of or occupy Tetlit Gwich’in Yukon land without the consent of the Governor in Council.

• Marginal note:Public hearing

  (3) Where an interest in land referred to in subsection (1) or (2) is to be taken possession of or occupied without the consent of the Yukon first nation or Gwich’in Tribal Council, as the case may be,

  • (a) a public hearing in respect of the location and extent of the land to be taken possession of or occupied shall be held in accordance with the following procedure:

    • (i) notice of the time and place for the public hearing shall be given to the Yukon first nation or Gwich’in Tribal Council and the public,

    • (ii) at the time and place fixed for the public hearing, an opportunity shall be provided for the Yukon first nation or Gwich’in Tribal Council and the public to be heard,

    • (iii) costs incurred by any party in relation to the hearing are in the discretion of the person or body holding the hearing and may be awarded on or before the final disposition of the issue, and

    • (iv) a report on the hearing shall be prepared and submitted to the Minister; and

  • (b) notice of intention to obtain the consent of the Governor in Council shall be given to the Yukon first nation or Gwich’in Tribal Council on completion of the public hearing and submission of a report thereon to the Minister.

• Definition of Tetlit Gwich’in Yukon land

  (4) In this section, Tetlit Gwich’in Yukon land means land as described in Annex B, as amended from time to time, to Appendix C of the Comprehensive Land Claim Agreement between Her Majesty the Queen in right of Canada and the Gwich’in, as represented by the Gwich’in Tribal Council, that was approved, given effect and declared valid by the Gwich’in Land Claim Settlement Act.

Mines and Minerals

Marginal note:Protection of mines

79 No company shall, without the authority of the Board, locate the line of its proposed pipeline, or construct the pipeline or portion thereof, so as to obstruct or interfere with or injuriously affect the working of or the access or adit to a mine then open, or for the opening of which preparations are, at the time of the location, being lawfully and openly made.

Marginal note:Right to minerals

80 A company is not, unless they have been expressly purchased, entitled to mines, ores, metals, coal, slate, oil, gas or other minerals in or under lands purchased by it, or taken by it under compulsory powers given to it by this Act, except only the parts of them that are necessary to be dug, carried away or used in the construction of the works, and, except as provided in this section, all those mines and minerals shall be deemed to be excepted from the transfer of the lands, unless they have been expressly included in the transfer documents.

Marginal note:Protection of pipeline from mining operations

• 81 (1) No person shall work or prospect for mines or minerals lying under a pipeline or any of the works connected therewith, or within forty metres therefrom, until leave therefor has been obtained from the Board.

• Marginal note:Use of oil and gas

  (2) Notwithstanding subsection (1), leave from the Board is not required in the case of a well taking oil or gas from lands lying under a pipeline or any of the works connected therewith if the well is not drilled within forty metres of the pipeline.

• Marginal note:Application for leave

  (3) On an application to the Board for leave to work or prospect for mines or minerals, the applicant shall submit a plan and profile of the portion of the pipeline to be affected thereby, giving all reasonable and necessary information and details respecting the proposed operations.

• Marginal note:Terms of leave

  (4) The Board may grant the application referred to in subsection (3) on such terms and conditions for the protection, safety or security of the public as seem expedient to the Board, and may order that such things be done as under the circumstances appear to the Board to be best adapted to remove or diminish the danger arising or likely to arise from the proposed operations.

Marginal note:Examination of site of mining operations

82 If necessary in order to ascertain whether any mining or prospecting operations have been carried on so as to injure or be detrimental to a pipeline or its safety or security or the safety or security of the public, a company may, with the written permission of the Board and after giving twenty-four hours notice in writing, enter on any lands through or near which its pipeline passes where any mining or prospecting operations are being carried on, and enter into and return from the site of the operations, and for those purposes the company may make use of any apparatus used in connection with the operations and use all necessary means for discovering the distance from its pipeline to the place where the operations are being carried on.

Marginal note:Compensation for severance, etc., of mining property

83 A company shall, from time to time, pay to the owner, lessee or occupier of any mines such compensation as the Board fixes and orders to be paid for or by reason of any severance by a pipeline of the land lying over the mines, the working of the mines being prevented, stopped or interrupted, or the mines having to be worked in such manner and under such restrictions as not to injure or be detrimental to the pipeline, and also for any minerals not purchased by the company that cannot be obtained by reason of the construction and operation of its line.

Application

Marginal note:Application restricted

84 The provisions of this Part that provide negotiation and arbitration procedures to determine compensation matters apply in respect of all damage caused by the pipeline or abandoned pipeline or anything carried by the pipeline but do not apply to

• (a) claims against a company arising out of activities of the company unless those activities are directly related to

  • (i) the acquisition of lands for a pipeline or abandoned pipeline,

  • (ii) the construction of the pipeline, or

  • (iii) the inspection, maintenance or repair of the pipeline or abandoned pipeline;

• (b) claims against a company for loss of life or injury to the person; or

• (c) awards of compensation or agreements respecting compensation made or entered into prior to March 1, 1983.

Acquisition of Lands

Definition of owner

85 In sections 86 to 107, owner means any person who is entitled to compensation under section 75.

Marginal note:Methods of acquisition

• 86 (1) Subject to subsection (2), a company may acquire lands for a pipeline under a land acquisition agreement entered into between the company and the owner of the lands or, in the absence of such an agreement, in accordance with this Part.

• Marginal note:Form of agreement

  (2) A company may not acquire lands for a pipeline under a land acquisition agreement unless the agreement includes provision for

  • (a) compensation for the acquisition of lands to be made, at the option of the owner of the lands, by one lump sum payment or by annual or periodic payments of equal or different amounts over a period of time;

  • (b) review every five years of the amount of any compensation payable in respect of which annual or other periodic payments have been selected;

  • (c) compensation for damages caused by the company’s operations, pipelines or abandoned pipelines;

  • (d) indemnification from all liabilities, damages, claims, suits and actions resulting from the company’s operations, pipelines or abandoned pipelines, other than liabilities, damages, claims, suits and actions resulting from

    • (i) in the Province of Quebec, the gross or intentional fault of the owner of the lands, and

    • (ii) anywhere else in Canada, the gross negligence or wilful misconduct of the owner of the lands;

  • (e) restricting the use of the lands to the line of pipe or other facility for which the lands are, by the agreement, specified to be required unless the owner of the lands consents to any proposed additional use at the time of the proposed additional use; and

  • (f) such additional matters as are, at the time the agreement is entered into, required to be included in a land acquisition agreement by any regulations made under paragraph 107(a).

Marginal note:Notice of proposed acquisition of lands

• 87 (1) When a company has determined the lands that may be required for the purposes of a section or part of a pipeline, the company shall serve a notice on all owners of the lands, in so far as they can be ascertained, which notice shall set out or be accompanied by

  • (a) a description of the lands of the owner that are required by the company for that section or part;

  • (b) details of the compensation offered by the company for the lands required;

  • (c) a detailed statement made by the company of the value of the lands required in respect of which compensation is offered;

  • (d) a description of the procedure for approval of the detailed route of the pipeline; and

  • (e) a description of the procedure available for negotiation and arbitration under this Part in the event that the owner of the lands and the company are unable to agree on any matter respecting the compensation payable.

• Marginal note:Agreement void or null

  (2) If a land acquisition agreement referred to in section 86 is entered into with an owner of lands before a notice is served on the owner under this section, that agreement is void or, in the province of Quebec, null.

• Marginal note:Abandonment: company’s liability

  (3) Where a company serves a notice on an owner of lands under subsection (1) and subsequently decides not to acquire all or part of the land described in the notice, it is liable to the owner for all damages suffered and reasonable costs incurred by the owner in consequence of the notice and the abandonment of the acquisition of the land and the owner may bring an action to recover the amount of the damages and costs in any court of competent jurisdiction in the province in which the land is situated.

Negotiation Proceedings

Marginal note:Request for negotiations

• 88 (1) If a company and an owner of lands have not agreed on the amount of compensation payable under this Act for the acquisition of lands or for damages caused by the company’s operations, pipelines or abandoned pipelines, or on any issue related to that compensation, the company or the owner may serve notice of negotiation on the other of them and on the Minister requesting that the matter be negotiated under subsection (3).

• Marginal note:Appointment of negotiator

  (2) Forthwith after a notice of negotiation is served on the Minister, the Minister shall appoint a negotiator and provide the negotiator with a copy of the notice of negotiation.

• Marginal note:Proceedings

  (3) A negotiator shall, on reasonable notice to the parties to the negotiation proceedings, meet with them and, without prejudice to any subsequent proceedings, proceed in a summary and informal manner to negotiate a settlement of the matter referred to in the notice of negotiation.

• Marginal note:Inspection of lands

  (4) A negotiator may enter on and make such inspection of the lands to which the negotiation proceedings relate as the negotiator deems necessary.

Marginal note:Report of negotiator

89 A negotiator shall, within sixty days after the commencement of the negotiation proceedings, report to the Minister the success or failure of the negotiations and shall thereupon send a copy of the report to both parties.

Arbitration Proceedings

Marginal note:Request for arbitration

• 90 (1) Where a company or an owner of lands wishes to dispense with negotiation proceedings under this Part or where negotiation proceedings conducted under this Part do not result in settlement of any compensation matter referred to in subsection 88(1), the company or the owner may serve notice of arbitration on the other of them and on the Minister requesting that the matter be determined by arbitration.

• Marginal note:If subsequent disputes not settled

  (2) If a company and a person who has had an award of compensation made in their favour or has entered into an agreement respecting compensation with the company are unable to settle any claim for damages caused by the company’s operations, pipelines or abandoned pipelines, or any matter respecting the compensation payable if annual or other periodic payments have been selected, the company or the person may serve notice of arbitration on the other of them and on the Minister requesting that the matter be determined by arbitration.

Marginal note:Duties of Minister

• 91 (1) Within six months from the day on which the Minister is served with a notice of arbitration under this Part, the Minister shall,

  • (a) if an Arbitration Committee exists to deal with the matter referred to in the notice, serve the notice on that Committee; or

  • (b) if no Arbitration Committee exists to deal with the matter, appoint an Arbitration Committee and serve the notice on that Committee.

• Marginal note:Exception

  (2) The Minister shall not take any action under subsection (1) where the Minister is satisfied that the matter referred to in a notice of arbitration served on the Minister is a matter

  • (a) solely related to the amount of compensation that has been previously awarded by an Arbitration Committee and that, under the award, the amount is not subject to a review at the time the notice is served; or

  • (b) to which the arbitration procedures set out in this Part do not apply.

• Marginal note:Appointment of Committee without notice

  (3) The Minister may, of his own motion and without having been served with a notice of arbitration referred to in subsection (1), appoint an Arbitration Committee.

Marginal note:Replacing member

• 91.1 (1) If a member of an Arbitration Committee becomes incapacitated, resigns or dies, resulting in the loss of quorum, the Minister may appoint a replacement for that member.

• Marginal note:Effects of replacing member

  (2) If a replacement is appointed under subsection (1) to replace a member,

  • (a) evidence and representations received by the Arbitration Committee before the replacement was appointed are considered to have been received after the replacement was appointed; and

  • (b) the Arbitration Committee is bound by every decision that it made before the replacement was appointed unless it elects to review, vary or rescind a decision.

Marginal note:Membership

• 92 (1) An Arbitration Committee shall consist of not less than three members appointed by the Minister each of whom shall receive such remuneration as is fixed by the Minister with the approval of the Governor in Council.

• Marginal note:Settlement land or Tetlit Gwich’in Yukon land

  (1.1) One member of an Arbitration Committee appointed to determine a compensation matter involving land referred to in section 78.1 must be a member nominated by the Yukon first nation concerned or the Gwich’in Tribal Council, as the case may be.

• Marginal note:Exclusion of certain persons as members

  (2) No member of the Board or officer or employee of the Board shall be appointed a member of an Arbitration Committee.

• Marginal note:Designation of Chairperson

  (3) The Minister shall designate one member of an Arbitration Committee to be its Chairperson.

• Marginal note:Appointment of persons to assist

  (4) The Minister may appoint such persons as the Minister deems necessary to assist an Arbitration Committee in carrying out its duties under this Part.

• Marginal note:Acting Chairperson

  (5) If the Chairperson of an Arbitration Committee is absent or unable to act or if the office is vacant, the other members of the Committee may authorize one of its members to act as Chairperson during the absence or incapacity of the Chairperson or vacancy in the office.

• Marginal note:Expenses

  (6) Each member of an Arbitration Committee is entitled to be paid reasonable travel and other expenses incurred in the performance of his duties while away from his ordinary place of residence.

Marginal note:Quorum and functions

• 93 (1) Three members of an Arbitration Committee constitute a quorum and may perform any function of the Committee and, when performing such a function, have all the powers and jurisdiction of the Committee.

• Marginal note:Signature on decisions, etc.

  (2) All decisions, orders, notices, directions and other documents made, given or issued by an Arbitration Committee shall be signed by its Chairperson.

• Marginal note:Powers with respect to witnesses, etc.

  (3) An Arbitration Committee has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its decisions or orders and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record.

• Marginal note:Records to be kept

  (4) An Arbitration Committee shall cause records to be kept of its hearings and proceedings and shall deposit its records with the Minister when the activities of the Committee to which the records relate have ceased.

• Marginal note:Written decisions

  (5) An Arbitration Committee shall render its decision and the reasons for it in writing within six months from the day on which it concludes a hearing.

• Marginal note:Continuation of obligation

  (6) A failure by an Arbitration Committee to comply with subsection (5) within the required time limit does not affect its obligation to render the decision, and anything done by it in relation to that decision remains valid.

Marginal note:Hearings and inspection of property

94 An Arbitration Committee may

• (a) hold hearings at such times and places as it considers expedient; and

• (b) enter on and inspect, or authorize any person to enter on and inspect, any land, building, works or other property associated with any matter referred to the Committee.

Marginal note:Commencement of proceedings

95 When a notice of arbitration is served on an Arbitration Committee, the Committee shall

• (a) fix a suitable time and place for a hearing in order to determine all compensation matters referred to in the notice; and

• (b) serve notice of the hearing on the parties to which the hearing relates.

Marginal note:Limitation period or prescription

• 95.1 (1) An Arbitration Committee shall conclude a hearing within 18 months from the day on which it is served with a notice of arbitration that is, in its opinion, complete.

• Marginal note:Continuation of jurisdiction

  (2) A failure by an Arbitration Committee to comply with subsection (1) within the required time limit does not affect its jurisdiction to deal with the matter referred to in the notice, and anything done by it in relation to that matter remains valid.

Marginal note:Termination of Arbitration Committee

96 The Minister may terminate the appointment of the members of an Arbitration Committee if the Minister is satisfied that the Committee has no arbitration work to carry out.

Marginal note:Determination of compensation

• 97 (1) An Arbitration Committee shall determine all compensation matters referred to in a notice of arbitration served on it and in doing so shall consider the following factors where applicable:

  • (a) the market value of the lands taken by the company;

  • (b) where annual or periodic payments are being made pursuant to an agreement or an arbitration decision, changes in the market value referred to in paragraph (a) since the agreement or decision or since the last review and adjustment of those payments, as the case may be;

  • (c) the loss of use to the owner of the lands taken by the company;

  • (d) the adverse effect of the taking of the lands by the company on the remaining lands of an owner;

  • (e) the nuisance, inconvenience and noise that may reasonably be expected to be caused by or arise from or in connection with the operations of the company;

  • (f) the damage to lands in the area of the lands taken by the company that might reasonably be expected to be caused by the operations of the company;

  • (g) loss of or damage to livestock or other personal property or movable affected by the operations of the company;

  • (h) any special difficulties in relocation of an owner or his property; and

  • (i) such other factors as the Committee considers proper in the circumstances.

• Definition of market value

  (2) For the purpose of paragraph (1)(a), market value is the amount that would have been paid for the lands if, at the time of their taking, they had been sold in the open market by a willing seller to a willing buyer.

Marginal note:Settlement land or Tetlit Gwich’in Yukon land

97.1 Where an Arbitration Committee is appointed to determine a compensation matter involving land referred to in section 78.1, sections 3, 26 to 31, 36, 54 to 58, 63, 67 and 72 of the Yukon Surface Rights Board Act apply to the Arbitration Committee as if it were the Yukon Surface Rights Board.

Marginal note:Form of compensation payment where land taken

• 98 (1) Where an Arbitration Committee makes an award of compensation in favour of a person whose lands are taken by a company, the Committee shall direct, at the option of that person, that the compensation or such part of it as is specified by that person be made by one lump sum payment or by annual or periodic payments of equal or different amounts over a period of time.

• Marginal note:Idem, in other cases

  (2) Where an Arbitration Committee makes an award of compensation in favour of any person other than a person referred to in subsection (1), the Committee may direct, at the request of that person, that the compensation or such part of it as is specified by that person be made by annual or periodic payments of equal or different amounts over a period of time and that there be a periodic review of the compensation or part thereof.

• Marginal note:Terms to be included in award

  (3) Every award of compensation made by an Arbitration Committee in respect of lands acquired by a company shall include provision for those matters referred to in paragraphs 86(2)(b) to (f) that would be required to be included in a land acquisition agreement referred to in section 86.

• Marginal note:Interest may be payable

  (4) An Arbitration Committee may direct a company to pay interest on the amount of any compensation awarded by the Committee at the lowest rate of interest quoted by banks to the most credit-worthy borrowers for prime business loans, as determined and published by the Bank of Canada for the month in which

  • (a) the company entered the lands in respect of which the compensation is awarded, or

  • (b) the damages suffered as a result of the operations of the company first occurred,

  as the case may be.

• Marginal note:Idem

  (5) Interest may be awarded under subsection (4) from the date the event referred to in paragraph (4)(a) or (b), as the case may be, occurred or from such later date as the Arbitration Committee may specify in its award.

Marginal note:Costs

• 99 (1) Where the amount of compensation awarded to a person by an Arbitration Committee exceeds eighty-five per cent of the amount of compensation offered by the company, the company shall pay all legal, appraisal and other costs determined by the Committee to have been reasonably incurred by that person in asserting that person’s claim for compensation.

• Marginal note:Idem

  (2) Where the amount of compensation awarded to a person by an Arbitration Committee does not exceed eighty-five per cent of the amount of compensation offered by the company, the legal, appraisal and other costs incurred by that person in asserting his claim for compensation are in the discretion of the Committee, and the Committee may direct that the whole or any part of those costs be paid by the company or by any other party to the proceedings.

Marginal note:Decisions

• 100 (1) An Arbitration Committee shall, forthwith after rendering its decision in an arbitration proceeding, forward by registered mail to the company and to each other party to the proceeding a certified copy of the decision.

• Marginal note:Power to amend, etc.

  (2) An Arbitration Committee may review, rescind, amend or substitute a decision of an Arbitration Committee but nothing in this subsection shall be construed as authorizing an Arbitration Committee to rescind, amend or substitute the amount of compensation awarded by an Arbitration Committee unless the amount is, under the award, subject to a review after a period of time specified in the award and the period of time has expired.

Marginal note:Appeals

101 A decision, order or direction of an Arbitration Committee may, on a question of law or a question of jurisdiction, be appealed to the Federal Court within thirty days after the day on which the decision, order or direction is made, given or issued or within such further time as that Court or a judge thereof under special circumstances may allow.

Marginal note:Enforcement of decisions

102 A decision, order or direction of an Arbitration Committee may, for the purpose of enforcement thereof, be made a rule, order or decree of the Federal Court or of a superior court in any province and shall be enforced in the same manner as a rule, order or decree of that court.

Marginal note:Agreements supersede Committee decisions

103 Where, at any time after a decision of an Arbitration Committee has been made in respect of lands acquired by a company, the parties affected thereby enter into a land acquisition agreement referred to in subsection 86(2), the agreement supersedes the decision of the Committee.

Right of Entry

Marginal note:Immediate right of entry

• 104 (1) Subject to subsection (2), the Board may, on application in writing by a company, if the Board considers it proper to do so, issue an order to the company granting it an immediate right to enter any lands on such terms and conditions, if any, as the Board may specify in the order.

• Marginal note:Where immediate right of entry prohibited

  (2) An order under subsection (1) shall not be issued in respect of any lands unless the company making the application for the order satisfies the Board that the owner of the lands has, not less than thirty days and not more than sixty days prior to the date of the application, been served with a notice setting out

  • (a) the date the company intends to make its application to the Board under subsection (1);

  • (b) the date the company wishes to enter the lands;

  • (c) the address of the Board to which any objection in writing that the owner might wish to make concerning the issuance of the order may be sent; and

  • (d) a description of the right of the owner to an advance of compensation under section 105 if the order is issued and the amount of the advance that the company is prepared to make.

Marginal note:Advance of compensation

105 Where a company has been granted an immediate right to enter any lands under subsection 104(1), the owner of the lands is entitled to receive from the company an amount as an advance of the compensation referred to in subsection 88(1) and where the owner has not received an advance or is not agreeable to the amount of the advance offered by the company, the owner may serve a notice of arbitration on the company and on the Minister requesting that the matter be determined by arbitration.

Marginal note:Vesting and registration

106 An order under subsection 104(1) granting to a company an immediate right to enter any lands

• (a) shall be deemed to vest in the company any title, interest or right in the lands in respect of which the order is granted that is specified in the order; and

• (b) shall be deposited in, and shall be registered, recorded or filed, as the case requires, by the registrar of deeds of, the land registry or land titles office in which land transactions affecting those lands may be deposited, registered, recorded or filed.

Marginal note:Regulations

107 The Minister may, with the approval of the Governor in Council, make regulations

• (a) prescribing, in addition to the matters specified in paragraphs 86(2)(a) to (e), other matters that shall be included in a land acquisition agreement between a company and an owner of lands;

• (b) providing for substituted service of any notice required to be served under section 34 or under this Part;

• (c) prescribing the form of notices under this Part;

• (d) governing the conduct of proceedings at public hearings held by an Arbitration Committee; and

• (e) generally for carrying out the purposes and provisions of this Part.

Construction over other Utility Lines, etc.

Marginal note:Construction — utility

• 108 (1) Subject to subsection (4), no company shall construct a pipeline that passes on, over, along or under a utility unless a certificate has been issued, or an order has been made under section 58, in respect of the pipeline, and

  • (a) the certificate or order contains a term or condition relating to that utility;

  • (b) the company has been granted leave under subsection (2); or

  • (c) the company is constructing the pipeline in circumstances specified in an order or regulation made under subsection (4).

• Marginal note:Authority to grant leave

  (2) The Board may, by order, on application, grant a company leave to construct a pipeline that passes on, over, along or under a utility. It may require from the applicant any plans, profiles and other information that it considers necessary to deal with the application.

• Marginal note:Terms and conditions

  (3) The leave may be granted in whole or in part and be subject to terms and conditions.

• Marginal note:Circumstances

  (4) The Board may make orders or regulations specifying circumstances for the purposes of paragraph (1)(c).

• Marginal note:Leave in emergency cases

  (5) The Board may grant leave under subsection (2) after construction of the proposed work has commenced if is satisfied that the work was urgently required and, before the commencement of construction, it was notified of the company’s intention to proceed with the proposed work.

• Definition of utility

  (6) In this section, utility means a highway, an irrigation ditch, a publicly owned or operated drainage system, sewer or dike, an underground telegraph or telephone line or a line for the transmission of hydrocarbons, electricity or any other substance.

Marginal note:Construction or operation — navigable water

109 No person shall construct or operate a pipeline that passes in, on, over, under through or across a navigable water unless a certificate has been issued, or an order has been made under section 58, in respect of the pipeline.

Marginal note:Effects of recommendation on navigation

• 110 (1) In addition to any other factor that it considers appropriate, the Board shall take into account the effects that the issuance of a certificate in respect of a pipeline that passes in, on, over, under, through or across a navigable water might have on navigation, including safety of navigation, when making its recommendation in a report prepared under subsection 52(1).

• Marginal note:Effects of decision on navigation

  (2) In addition to any other factor that it considers appropriate, the Board shall take into account the effects that its decision might have on navigation, including safety of navigation, when deciding whether to make an order, give a direction or grant a leave, approval or exemption in respect of a pipeline that passes in, on, over, under, through or across a navigable water.

Marginal note:Pipeline not work

111 Despite the definition work in section 2 of the Navigation Protection Act, a pipeline is not a work to which that Act applies.

Marginal note:Regulations

• 111.1 (1) The Governor in Council may, for purposes related to navigation, on the joint recommendation of the Minister and the Minister of Transport, make regulations respecting sections or parts of pipelines that pass in, on, over, under, through or across a navigable water, including regulations respecting

  • (a) their design, construction or operation;

  • (b) the making of deviations, changes or alterations to them;

  • (c) their diversion or relocation;

  • (d) the safety and security of their operation; and

  • (e) the abandonment of their operation.

• Marginal note:Offence

  (2) Every person who contravenes a regulation made under subsection (1) is guilty of an offence punishable on summary conviction.

Marginal note:Existing terms and conditions

• 111.2 (1) Terms and conditions in respect of a pipeline that were, at any time before the coming into force of this section, imposed under section 108, as that section read from time to time before the coming into force of this section, are considered to be terms and conditions set out in the certificate issued, or order made under section 58, as the case may be, in respect of the pipeline.

• Marginal note:Construction without leave

  (2) If, at any time before the coming into force of this section, the Minister of Transport or the Board had provided, under section 108, as that section read from time to time before the coming into force of this section, that leave under that section was not necessary because the pipeline was to be constructed in accordance with certain orders, regulations, plans and specifications, no company shall construct the pipeline otherwise than in accordance with those orders, regulations, plans and specifications or as specified by the Board.

Marginal note:Offence and punishment

• 111.3 (1) Every person who contravenes subsection 108(1), section 109 or subsection 111.2(2) is guilty of an offence and is liable

  • (a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or

  • (b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

• Marginal note:Application of subsections 121(2) to (5)

  (2) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, in respect of an offence under this section.

Marginal note:If pipeline affixed to any real property or immovables

• 111.4 (1) Despite this Act or any other general or Special Act or law to the contrary, if any section or part of a pipeline passes on, over, along or under a utility, as defined in subsection 108(6) — or passes in, on, over or under a navigable water — and that section or part of the pipeline has been affixed to any real property or immovable in any of the circumstances referred to in subsection (2),

  • (a) that section or part of the pipeline remains subject to the rights of the company and remains the property of the company as fully as it was before being so affixed and does not become part of the real property or immovable of any person other than the company unless otherwise agreed by the company in writing and unless notice of the agreement in writing has been filed with the Secretary; and

  • (b) subject to the provisions of this Act, the company may create a lien, mortgage, charge or other security, or the company may constitute a hypothec, on that section or part of the pipeline.

• Marginal note:Circumstances

  (2) The following are the circumstances for the purposes of subsection (1):

  • (a) in the case of the pipeline:

    • (i) leave has been obtained under subsection 108(2) or (5) in respect of the pipeline,

    • (ii) the certificate issued, or the order made under section 58, in respect of the pipeline contains a term or condition relating to the utility,

    • (iii) the pipeline has been constructed in circumstances specified in an order or regulation made under subsection 108(4),

    • (iv) a certificate has been issued, or an order has been made under section 58, in respect of the pipeline and the pipeline passes in, on, over or under a navigable water, and

    • (v) leave has been obtained under section 108 in respect of the pipeline at any time before the coming into force of this subsection, as that section read from time to time before the coming into force of this subsection; and

  • (b) in the case of the power line to which this section applies by reason of section 58.27,

    • (i) leave has been obtained under subsection 58.28(2) or (5) in respect of the power line,

    • (ii) the permit referred to in section 58.11, or the certificate, issued in respect of the power line contains a term or condition relating to that utility,

    • (iii) the power line has been constructed in circumstances specified in an order or regulation made under subsection 58.28(4),

    • (iv) a permit referred to in section 58.11, or a certificate, has been issued in respect of the power line and the power line passes in, on, over or under a navigable water, and

    • (v) leave has been obtained under section 108 in respect of the power line at any time before the coming into force of this subsection, as that section read from time to time before the coming into force of this subsection.

Marginal note:Prohibition — construction or ground disturbance

• 112 (1) It is prohibited for any person to construct a facility across, on, along or under a pipeline or engage in an activity that causes a ground disturbance within the prescribed area unless the construction or activity is authorized by the orders or regulations made under subsection (5) and done in accordance with them.

• Marginal note:Prohibition — vehicles and mobile equipment

  (2) It is prohibited for any person to operate a vehicle or mobile equipment across a pipeline unless

  • (a) that operation is authorized by the orders or regulations made under subsection (5) and done in accordance with them; or

  • (b) the vehicle or mobile equipment is operated within the travelled portion of a highway or public road.

• (3) [Repealed, 2015, c. 21, s. 34]

• Marginal note:Directions

  (4) The Board may direct the owner of a facility constructed across, on, along or under a pipeline in contravention of this Act or the Board’s orders or regulations to do such things as the Board considers necessary for the safety or security of the pipeline and may, if the Board considers that the facility may impair the safety or security of the operation of the pipeline, direct the owner to reconstruct, alter or remove the facility.

• Marginal note:Regulations and orders

  (5) The Board may make orders or regulations

  • (a) governing the design, construction, operation and abandonment of facilities constructed across, on, along or under pipelines;

  • (a.1) prescribing the area for the purposes of subsection (1);

  • (a.2) authorizing the construction of facilities across, on, along or under pipelines;

  • (a.3) authorizing ground disturbances within the prescribed area;

  • (b) governing the measures to be taken in relation to

    • (i) the construction of facilities across, on, along or under pipelines,

    • (ii) the construction of pipelines across, on, along or under facilities, other than railways, and

    • (iii) ground disturbances within the prescribed area;

  • (c) authorizing the operation of vehicles or mobile equipment across a pipeline and governing the measures to be taken in relation to that operation; and

  • (d) specifying activities for the purposes of paragraph (a) of the definition ground disturbance in section 2.

• Marginal note:Temporary prohibition on ground disturbances

  (5.1) Orders or regulations made under subsection (5) may provide for the prohibition of ground disturbances in an area that is situated in the vicinity of a pipeline and that may extend beyond the prescribed area during the period that starts when a request is made to a pipeline company to locate its pipeline and ends

  • (a) at the end of the third working day after the day on which the request is made; or

  • (b) at any later time that is agreed to between the pipeline company and the person making the request.

• Marginal note:Exemptions

  (6) The Board may, by order made on any terms and conditions that the Board considers appropriate, exempt any person from the application of an order or regulation made under subsection (5).

• Marginal note:Inspection officers

  (7) The provisions of sections 49 to 51.3 relating to inspection officers apply for the purpose of ensuring compliance with orders and regulations made under subsection (5).

• Marginal note:Offence

  (8) Every person who contravenes subsection (1) or (2), a direction made under subsection (4) or an order or regulation made under subsection (5) is guilty of an offence and liable

  • (a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or

  • (b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

• Marginal note:Application of subsections 121(2) to (5)

  (9) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, to an offence under subsection (8).

113 [Repealed, 1990, c. 7, s. 28]

Executions, etc.

Marginal note:Assets of company subject to executions, etc.

• 114 (1) It is hereby declared that nothing in this Act restricts or prohibits any of the following transactions:

  • (a) the sale under execution of any property of a company; or

  • (b) the creation of any lien, mortgage, hypothec, charge or other security on the property of the company, or of any prior claim or right of retention within the meaning of the Civil Code of Québec or any other statute of the Province of Quebec with respect to property of the company;

  • (c) the sale, elsewhere than in the Province of Quebec, under an order of a court of any property of the company to enforce or realize on any lien, mortgage, charge or other security on the property of the company;

  • (d) the sale, in the Province of Quebec, under an order of a court or by judicial authority, of any property of the company to enforce or realize on any hypothec, charge or other security on the property of the company; and

  • (e) the exercise of remedies for the enforcement and realization of any prior claim referred to in paragraph (b) or the exercise of any right of retention referred to in that paragraph.

• Marginal note:Application of provincial law

  (2) It is hereby declared that a transaction mentioned in subsection (1) in respect of any property of a company is subject to the same laws to which it would be subject if the work and undertaking of the company were a local work or undertaking in the province in which that property is situated.

Construing Special Acts

Marginal note:Construing Special Acts

115 Except as otherwise provided in this Part,

• (a) this Act shall be construed as incorporate with a Special Act; and

• (b) where the provisions of this Part and a Special Act relate to the same subject-matter, the provisions of the Special Act shall, in so far as is necessary to give effect to the Special Act, be taken to override the provisions of this Part.

PART VIExports and Imports

DIVISION IOil and Gas

Prohibition

Marginal note:Prohibition

116 Except as otherwise authorized by or under the regulations, no person shall export or import any oil or gas except under and in accordance with a licence issued under this Part.

Issuance of Licences

Marginal note:Issuance of licences

• 117 (1) Subject to the regulations, the Board may, on such terms and conditions as it may impose, issue licences for the exportation or importation of oil or gas.

• Marginal note:Compliance

  (2) Every licence is subject to the condition that the provisions of this Act and the regulations in force at the date of issue of the licence and as subsequently enacted, made or amended, as well as every order made under the authority of this Act, will be complied with.

Marginal note:Criteria

118 On an application for a licence to export oil or gas, the Board shall satisfy itself that the quantity of oil or gas to be exported does not exceed the surplus remaining after due allowance has been made for the reasonably foreseeable requirements for use in Canada, having regard to the trends in the discovery of oil or gas in Canada.

Marginal note:Limitation period or prescription

• 118.1 (1) The Board shall decide whether to issue a licence for the exportation of oil or gas within six months from the day on which the applicant has, in the Board’s opinion, provided a complete application. The Board shall make that day public.

• Marginal note:Continuation of jurisdiction

  (2) A failure by the Board to comply with subsection (1) within the required time limit does not affect its jurisdiction to issue the licence and anything done by it in relation to the issuance of that licence remains valid.

• Marginal note:Excluded period

  (3) If the Board requires the applicant to provide information or undertake a study with respect to the application and the Board states publicly that this subsection applies, the period that is taken by the applicant to comply with the requirement is not included in the calculation of the time limit.

• Marginal note:Public notice of excluded period

  (4) The Board shall make public the day on which the period referred to in subsection (3) begins and the day on which it ends as soon as each day is known.

• Marginal note:Extension

  (5) The Minister may, by order, extend the time limit by a maximum of three months. The Governor in Council may, on the recommendation of the Minister, by order, further extend that time limit by any additional period or periods of time.

Marginal note:Governor in Council approval

• 118.2 (1) If a regulation made under subsection 119.01(1) requires the approval of the Governor in Council for the issuance of a licence for the exportation of oil or gas, the Board may issue the licence only if the Governor in Council grants its approval within three months from the day on which the Board makes its decision under subsection 118.1(1).

• Marginal note:Continuation of jurisdiction.

  (2) Despite subsection (1), if the Governor in Council grants its approval after the expiry of the time limit for doing so, the Board’s jurisdiction to issue the licence is not affected and anything done by it in relation to the issuance of that licence remains valid.

• Marginal note:Period for issuing licence

  (3) The Board shall issue the licence within seven days from the day on which the Governor in Council’s approval is granted.

Revocation and Suspension

Marginal note:Revocation and suspension of licences

• 119 (1) Subject to subsection (2) and the regulations, the Board may, by order, with the approval of the Governor in Council, revoke or suspend a licence if

  • (a) any term or condition of the licence has not been complied with or has been contravened; or

  • (b) the Board is of the opinion that the public convenience and necessity so require.

• Marginal note:Notice to licence holder

  (2) No order shall be made under subsection (1) unless the Board has, in a notice sent to the holder of the licence, advised the holder of the term or condition of the licence that it is alleged has not been complied with or has been contravened, or of the reasons on which the opinion of the Board referred to in paragraph (1)(b) is based, as the case may be, and the Board has afforded the holder a reasonable opportunity to be heard.

• Marginal note:Revocation or suspension on application, etc., of holder

  (3) Notwithstanding subsections (1) and (2), the Board may, by order, revoke or suspend a licence on the application or with the consent of the holder thereof.

Regulations

Marginal note:Regulations

• 119.01 (1) The Governor in Council may make regulations for carrying into effect the purposes and provisions of this Division, including regulations respecting

  • (a) the information to be furnished by applicants for licences and the procedure to be followed in applying for licences and in issuing licences;

  • (b) the duration of licences, the approval required in respect of the issue of licences, the quantities that may be exported or imported under licences and any other terms and conditions to which licences may be subject;

  • (c) units of measurement and measuring instruments or devices to be used in connection with the exportation or importation of oil or gas;

  • (d) the inspection of any instruments, devices, plant, equipment, books, records or accounts or any other thing used for or in connection with the exportation or importation of oil or gas;

  • (e) the immediate disposition of oil or gas seized by an officer referred to in section 122; and

  • (f) the circumstances in which the Board may make orders authorizing the exportation or importation of oil or gas and the terms and conditions that may be included in those orders.

• Marginal note:Maximum duration

  (1.1) The duration referred to in paragraph (1)(b) begins on a date to be fixed in the licence and must not exceed

  • (a) 40 years, in the case of a licence for the exportation of natural gas as defined by the regulations; and

  • (b) 25 years, in any other case.

• Marginal note:Regulations respecting export prices

  (2) The Governor in Council may make regulations

  • (a) prescribing, in respect of oil or gas the export of which is authorized under this Part, or any quality, kind or class of that oil or gas or type of service in relation thereto, the price at which or the range of prices within which that oil or gas shall be sold; and

  • (b) exempting oil or gas that is exported to a NAFTA country, as defined in subsection 2(1) of the North American Free Trade Agreement Implementation Act, to Chile or to Costa Rica, or any quality, kind or class of that oil or gas or type of service in relation thereto, from the application of regulations made under paragraph (a).

  • (c) [Repealed, 1997, c. 14, s. 82]

• Marginal note:Idem

  (3) Regulations made under subsection (2) may prescribe different prices or ranges of prices in respect of different countries.

DIVISION IIElectricity

Prohibition

Marginal note:Prohibition

119.02 No person shall export any electricity except under and in accordance with a permit issued under section 119.03 or a licence issued under section 119.08.

Issuance of Permits

Marginal note:Issuance

• 119.03 (1) Except in the case of an application designated by order of the Governor in Council under section 119.07, the Board shall, on application to it and without holding a public hearing, issue a permit authorizing the exportation of electricity.

• Marginal note:Information

  (2) The application must be accompanied by the information that under the regulations is to be furnished in connection with the application.

Marginal note:Publication

• 119.04 (1) The applicant shall publish a notice of the application in the Canada Gazette and such other publications as the Board considers appropriate.

• Marginal note:Waiver

  (2) The Board may waive the requirement to publish a notice referred to in subsection (1) if the Board considers that there is a critical shortage of electricity outside Canada caused by terrorist activity within the meaning of subsection 83.01(1) of the Criminal Code.

Marginal note:Further information

119.05 The Board may, within a reasonable time after the publication of the notice, require the applicant to furnish such information, in addition to that required to accompany the application, as the Board considers necessary to determine whether to make a recommendation pursuant to section 119.06.

Marginal note:Delay of issuance

• 119.06 (1) The Board may make a recommendation to the Minister, which it shall make public, that an application for exportation of electricity be designated by order of the Governor in Council under section 119.07, and may delay issuing a permit during such period as is necessary for the purpose of making such an order.

• Marginal note:Criteria

  (2) In determining whether to make a recommendation, the Board shall seek to avoid the duplication of measures taken in respect of the exportation by the applicant and the government of the province from which the electricity is exported, and shall have regard to

  • (a) the effect of the exportation of the electricity on provinces other than that from which the electricity is to be exported;

  • (b) [Repealed, 2012, c. 19, s. 94]

  • (c) whether the applicant has

    • (i) informed those who have declared an interest in buying electricity for consumption in Canada of the quantities and classes of service available for sale, and

    • (ii) given an opportunity to purchase electricity on terms and conditions as favourable as the terms and conditions specified in the application to those who, within a reasonable time after being so informed, demonstrate an intention to buy electricity for consumption in Canada; and

  • (d) such considerations as may be specified in the regulations.

Orders

Marginal note:Where licence required

• 119.07 (1) The Governor in Council may make orders

  • (a) designating an application for exportation of electricity as an application in respect of which section 119.08 applies; and

  • (b) revoking any permit issued in respect of the exportation.

• Marginal note:Exception

  (2) No order may be made under subsection (1) more than forty-five days after the issuance of a permit in respect of the application.

• Marginal note:Effect of order

  (3) Where an order is made under subsection (1),

  • (a) no permit shall be issued in respect of the application; and

  • (b) any application in respect of the exportation shall be dealt with as an application for a licence.

Issuance of Licences

Marginal note:Issuance

• 119.08 (1) The Board may, subject to the approval of the Governor in Council, issue a licence for the exportation of electricity in relation to which an order made under section 119.07 is in force.

• Marginal note:Criteria

  (2) In deciding whether to issue a licence, the Board shall have regard to

  • (a) the effect of the exportation of the electricity on provinces other than from which the electricity is to be exported;

  • (b) whether the applicant has

    • (i) informed those who have declared an interest in buying electricity for consumption in Canada of the quantities and classes of service available for sale, and

    • (ii) given an opportunity to purchase electricity on terms and conditions as favourable as the terms and conditions specified in the application to those who, within a reasonable time after being so informed, demonstrate an intention to buy electricity for consumption in Canada; and

  • (c) any considerations that may be specified in the regulations.

• Marginal note:Revocation of permit

  (3) Any permit issued in respect of an application for a permit for the exportation of electricity in relation to which an order made under section 119.07 is in force and that is not revoked by the order is revoked on the Board’s deciding not to issue a licence for that exportation.

Conditions of Permits and Licences

Marginal note:Terms and conditions

• 119.09 (1) The Board may, on the issuance of a permit, make the permit subject to such terms and conditions respecting the matters prescribed by the regulations as the Board considers necessary or desirable in the public interest.

• Marginal note:Idem

  (2) The Board may, on the issuance of a licence, make the licence subject to such terms and conditions as the Board may impose.

Marginal note:Compliance

119.091 Every permit and licence is subject to the condition that the provisions of this Act and the regulations in force on the date of the issuance of the permit or licence and as subsequently enacted, made or amended, as well as every order made under the authority of this Act, will be complied with.

Marginal note:Duration

119.092 The term of a permit or licence is thirty years or such lesser term as is specified in the permit or licence.

Marginal note:Revocation and suspension

• 119.093 (1) The Board may revoke or suspend a permit or licence issued in respect of the exportation of electricity

  • (a) on the application or with the consent of the holder of the permit or licence; or

  • (b) where a holder of the permit or licence has contravened or failed to comply with a term or condition of the permit or licence.

• Marginal note:Notice

  (2) The Board shall not revoke or suspend a permit or licence under paragraph (1)(b) unless the Board has

  • (a) sent a notice to the holder of the permit or licence specifying the term or condition that is alleged to have been contravened or not complied with; and

  • (b) given the holder of the permit or licence a reasonable opportunity to be heard.

Regulations

Marginal note:Regulations

119.094 The Governor in Council may make regulations for carrying into effect the purposes and provisions of this Division, including regulations

• (a) prescribing matters in respect of which terms and conditions of permits may be imposed;

• (b) respecting

  • (i) the information to be furnished in connection with applications for permits,

  • (ii) units of measurement and measuring instruments or devices to be used in connection with the exportation of electricity, and

  • (iii) the inspection of any instruments, devices, plant, equipment, books, records or accounts or any other thing used for or in connection with the exportation of electricity;

• (c) specifying considerations to which the Board shall have regard in deciding whether to recommend to the Minister that an application for a permit for the exportation of electricity be designated by order of the Governor in Council under section 119.07; and

• (d) specifying considerations to which the Board shall have regard in deciding whether to issue a licence for the exportation of electricity in relation to which an order made under section 119.07 is in force.

DIVISION IIIImplementation of Free Trade Agreements

119.1 to 119.7 [Repealed, 1997, c. 14, s. 83]

Marginal note:Definitions

120 The definitions in this section apply in this Division.

CCFTA

CCFTA has the same meaning as “Agreement” in the Canada-Chile Free Trade Agreement Implementation Act. (ALÉCC)

CCRFTA

CCRFTA has the same meaning as “Agreement” in the Canada — Costa Rica Free Trade Agreement Implementation Act. (ALÉCCR)

energy goods

energy goods means any goods for the exportation of which a licence or permit issued under this Part or an order made under the regulations is required. (produits énergétiques)

NAFTA

NAFTA has the same meaning as “Agreement” in the North American Free Trade Agreement Implementation Act. (ALÉNA)

Marginal note:Giving effect to NAFTA, CCFTA and CCRFTA

• 120.1 (1) In exercising its powers and performing its duties, the Board shall give effect to NAFTA, CCFTA and CCRFTA.

• Marginal note:Orders

  (2) The Governor in Council may, either on the recommendation of the Minister made at the request of the Board or on the Governor in Council’s own motion, make orders of general application respecting the manner in which the Board shall perform the duty imposed on it by subsection (1) or the interpretation to be given to NAFTA, CCFTA or CCRFTA by the Board for the purposes of this Act.

• Marginal note:Effect of orders

  (3) An order made under subsection (2) is binding on the Board from the time it comes into force and, unless otherwise provided therein, applies in respect of matters pending before the Board at that time.

• Marginal note:Request of Board

  (4) The Board may, in order to request the making of an order under subsection (2), suspend the determination of any matter of which it is seized.

Marginal note:Declaration of Governor in Council

120.2 The Governor in Council may, by order, declare that the maintenance or introduction of a restriction on the exportation to the United States, Chile or Costa Rica of energy goods or of any quality, kind or class of energy goods is justified under Article 605 of NAFTA, Article C-13 of CCFTA or Article III.11 of CCRFTA, as the case may be.

Marginal note:Board may request declaration

120.3 If, in the course of determining an application for a licence or permit, or determining whether to make an order, for the exportation to the United States, Chile or Costa Rica of energy goods or of any quality, kind or class of energy goods, the Board considers that the maintenance or introduction of a restriction on that exportation is in the public interest and that subparagraph (a), (b) or (c) of Article 605 of NAFTA, subparagraph 1(a), (b) or (c) of Article C-13 of CCFTA or subparagraph 1(a), (b) or (c) of Article III.11 of CCRFTA, as the case may be, would apply as a consequence of the restriction, the Board may, in order to request that the Minister recommend to the Governor in Council that an order be made under section 120.2 in respect of the relevant energy goods, suspend the determination until not later than one hundred and twenty days after the request is made.

Marginal note:Exportation to United States, Chile or Costa Rica

• 120.4 (1) The Board may neither refuse to issue a licence or permit or make an order nor revoke, suspend or vary a licence, permit or order for the exportation to the United States, Chile or Costa Rica of energy goods or of any quality, kind or class of energy goods if that refusal, revocation, suspension or variation would constitute the maintenance or introduction of a restriction on that exportation as a consequence of which subparagraph (a), (b) or (c) of Article 605 of NAFTA, subparagraph 1(a), (b) or (c) of Article C-13 of CCFTA or subparagraph 1(a), (b) or (c) of Article III.11 of CCRFTA, as the case may be, would apply.

• Marginal note:Effect of orders

  (2) Subsection (1) does not apply in respect of the exportation to the United States, Chile or Costa Rica of such energy goods as are, or of such quality, kind or class of energy goods as is, referred to in an order made under section 120.2 during the time that the order is in force.

• Marginal note:Revocation, etc. on consent

  (3) Notwithstanding subsection (1), the Board may revoke, suspend or vary a licence, permit or order on the application or with the consent of its holder.

Marginal note:Where no declaration made

120.5 The Board may, despite its not being satisfied in accordance with section 118, issue a licence for the exportation to the United States, Chile or Costa Rica of such energy goods as were, or of such quality, kind or class of energy goods as was, referred to in a request made under section 120.3 if

• (a) the Minister declines to recommend to the Governor in Council that an order be made under section 120.2;

• (b) the Governor in Council declines to make the order; or

• (c) no order is made within one hundred and twenty days after the making of the request.

DIVISION IVOffences, Punishment and Enforcement

Marginal note:Offence and punishment

• 121 (1) Every person who contravenes any of the provisions of this Part or the regulations made under this Part is guilty of an offence and liable

  • (a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or

  • (b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

• Marginal note:Officers, etc., of corporation

  (2) If a corporation commits an offence under this Part, any officer or director, or agent or mandatary, of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence whether or not the corporation has been prosecuted or convicted.

• Marginal note:Proof of offence

  (3) In any prosecution for an offence under this Part, it is sufficient proof of the offence to show that it was committed by an employee, or an agent or a mandatary, of the accused, whether or not the employee, or agent or mandatary, is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused and that the accused exercised all due diligence to prevent its commission.

• Marginal note:Continuing offence

  (4) Where an offence under this Part is committed on more than one day, it shall be deemed to be a separate offence for each day on which the offence is committed or continued.

• Marginal note:Limitation

  (5) Proceedings by way of summary conviction in respect of an offence under this Part may be instituted at any time within but not later than one year after the time when the subject-matter of the proceedings arose.

Marginal note:Powers of certain officers

122 An officer as defined in the Customs Act has, in respect of the exportation or importation of oil or gas, all the powers of an officer under the Customs Act and, except to the extent that they are inconsistent with any regulations made under this Part relating to the immediate disposition of oil or gas seized, the provisions of that Act and any regulations made under that Act respecting search, detention, seizure, forfeiture, condemnation and disposition apply, with such modifications as the circumstances require, to oil or gas tendered for export or import or exported or imported or otherwise dealt with contrary to this Part.

PART VIIInterprovincial Oil and Gas Trade

Interpretation

Marginal note:Definitions

123 In this Part,

designated oil or gas

designated oil or gas means oil or gas, or both, or any quality or kind thereof, that is the subject of an order made pursuant to subsection 124(1); (pétrole ou gaz désigné)

designated province or area

designated province or area means a province or the offshore area or both, as referred to in an order made pursuant to subsection 124(1); (région désignée)

movement

movement, in respect of oil or gas, excludes an export thereof; (acheminement)

offshore area

offshore area means Sable Island or any area of land not within a province that belongs to Her Majesty in right of Canada or in respect of which Her Majesty in right of Canada has the right to dispose of or exploit the natural resources and that is situated in submarine areas in the internal waters of Canada, the territorial sea of Canada or the continental shelf of Canada. (zone extracôtière)

Control by Board

Marginal note:Direction to Board

• 124 (1) The Governor in Council may, by order, direct that the Board assume supervision and control of the movement of designated oil or gas out of a designated province or area.

• Marginal note:Licence required

  (2) Where an order has been made under subsection (1) and while it remains in force, no person shall, except as otherwise authorized by the regulations, move designated oil or gas out of the designated province or area except under the authority of and in accordance with a licence issued under this Part.

Issue of Licences

Marginal note:Issue of licences

• 125 (1) Subject to the regulations, the Board may, on such terms and conditions as it may impose, issue a licence to any person permitting the movement of designated oil or gas out of the designated province or area.

• Marginal note:Compliance

  (2) Every licence is subject to the conditions that

  • (a) the provisions of this Act and the regulations in force on the date of issue of the licence and as subsequently enacted, made or amended, as well as every order made under this Act, will be complied with; and

  • (b) the provisions of the Energy Administration Act and the regulations, if any, made under that Act applicable to the designated oil or gas in respect of which the licence is issued will be complied with.

Marginal note:Criteria

• 126 (1) On an application for a licence, the Board shall have regard to all considerations that appear to it to be relevant, including the equitable distribution of designated oil or gas in Canada.

• Marginal note:Revocation and suspension of licences

  (2) Section 119 applies in respect of a licence issued under this Part.

Regulations

Marginal note:Regulations

127 The Governor in Council may make regulations for carrying into effect the purposes and provisions of this Part, including regulations respecting

• (a) the information to be furnished by applicants for licences and the procedure to be followed in applying for licences and in issuing licences;

• (b) the duration of licences from a date to be fixed in the licence, the approval required in respect of the issue of licences, the quantities that may be moved out of the designated province or area under the authority of a licence, and any other terms or conditions to which licences may be subject;

• (c) units of measurement and measuring instruments or devices to be used in connection with the movement of designated oil or gas out of the designated province or area; and

• (d) the inspection of any instruments, devices, plant, equipment, books, records or accounts or any other thing used for or in connection with the movement of designated oil or gas out of the designated province or area.

Offences, Punishment and Enforcement

Marginal note:Offence and punishment

• 128 (1) Every person who contravenes any of the provisions of this Part or the regulations made under this Part is guilty of an offence and liable

  • (a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or

  • (b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

• Marginal note:Application of subsections 121(2) to (5)

  (2) Subsections 121(2) to (5) apply, with such modifications as the circumstances require, in respect of an offence under this Part.

PART VIIIGeneral

Regulations

Marginal note:Regulations respecting accounts, etc.

• 129 (1) The Board may, with the approval of the Governor in Council, make regulations

  • (a) respecting the manner in which the accounts of a company shall be kept;

  • (b) respecting the classes of property for which depreciation charges may properly be included under operating expenses in the accounts and the accounting method or methods that may be used in computing and charging depreciation in respect of each of the classes of property;

  • (c) respecting a uniform system of accounts applicable to any class of company; and

  • (d) requiring

    • (i) companies that have been authorized under Part III to construct or operate a pipeline,

    • (i.1) companies that have been granted the leave required by paragraph 74(1)(d),

    • (ii) persons exporting oil, gas or electricity or importing oil or gas, and

    • (iii) persons holding a licence under Part VI or VII,

    to keep and make available to the Board for inspection by the Board or a person authorized by the Board at a place of business in Canada such records, books of account and other documents in such form as may be prescribed by the regulations and submit to the Board, at such times and in such form as may be so prescribed, returns and information respecting capital, traffic, revenues, expenses and other matters so prescribed and deemed by the Board to be matters that should be considered by it in carrying out its powers and duties under this Act in relation to those companies and persons.

• Marginal note:Exemptions

  (1.1) The Board may, by order made on such terms and conditions as it considers appropriate, exempt a company or person from the application of a regulation made under subsection (1).

• Marginal note:Contravention and punishment

  (2) Every person who contravenes a regulation made under this section is guilty of an offence punishable on summary conviction.

Marginal note:General regulations

• 130 (1) The Governor in Council may make regulations for carrying the purposes and provisions of this Act into effect and may, by those regulations, designate as an oil product or as a gas product any substance resulting from the processing or refining of hydrocarbons or coal if that substance

  • (a) is asphalt or a lubricant; or

  • (b) is a suitable source of energy by itself or when it is combined or used in association with something else.

• Marginal note:Exemptions

  (2) The Governor in Council may by regulation exempt any oil or gas or any kind, quality or class thereof or any area or transaction from the operation of all or any of the provisions of this Act.

Marginal note:Security regulations

• 131 (1) The Board may, with the approval of the Governor in Council, make regulations respecting the security of pipelines and international power lines, including, without limiting the generality of the foregoing, regulations respecting standards, plans and audits relating to the security of pipelines and international power lines.

• Marginal note:Offence and punishment

  (2) Every person who contravenes any of the regulations made under subsection (1) is guilty of an offence and liable

  • (a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or

  • (b) on conviction on indictment, to a fine not exceeding five hundred thousand dollars or to imprisonment for a term not exceeding five years or to both.

Sentencing

Marginal note:Sentencing principles

• 132 (1) In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1 to 718.21 of the Criminal Code, the court shall consider the following principles when sentencing a person who is found guilty of an offence under this Act in relation to an actual or potential unintended or uncontrolled release of oil, gas or any other commodity from a pipeline:

  • (a) the amount of the fine should be increased to account for each aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and

  • (b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.

• Marginal note:Aggravating factors

  (2) The aggravating factors are the following:

  • (a) the offence caused harm or risk of harm to human health or safety;

  • (b) the offence caused damage or risk of damage to the environment or environmental quality;

  • (c) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable component of the environment;

  • (d) the damage or harm caused by the offence is extensive, persistent or irreparable;

  • (e) the offender committed the offence intentionally or recklessly;

  • (f) the offender failed to take reasonable steps to prevent the commission of the offence;

  • (g) by committing the offence or failing to take action to prevent its commission, the offender increased or intended to increase their revenue or decreased or intended to decrease their costs;

  • (h) the offender has a history of non-compliance with federal or provincial legislation that relates to safety or environmental conservation or protection; and

  • (i) after the commission of the offence, the offender

    • (i) attempted to conceal its commission,

    • (ii) failed to take prompt action to prevent, mitigate or remediate its effects, or

    • (iii) failed to take prompt action to reduce the risk of committing similar offences.

• Marginal note:Absence of aggravating factor

  (3) The absence of an aggravating factor set out in subsection (2) is not a mitigating factor.

• Meaning of damage

  (4) For the purposes of paragraphs (2)(b) to (d), damage includes loss of use value and non-use value.

• Marginal note:Reasons

  (5) If the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (2) but decides not to increase the amount of the fine because of that factor, the court shall give reasons for that decision.

Marginal note:Orders of court

• 132.1 (1) If a person is found guilty of an offence under this Act in relation to an actual or potential unintended or uncontrolled release of oil, gas or any other commodity from a pipeline, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, in addition to any other punishment that may be imposed under this Act, make an order that has any or all of the following effects:

  • (a) prohibiting the offender from committing an act or engaging in an activity that may, in the opinion of the court, result in the continuation or repetition of the offence;

  • (b) directing the offender to take any action that the court considers appropriate to remedy or avoid any harm to the environment that results or may result from the act or omission that constituted the offence;

  • (c) directing the offender to carry out environmental effects monitoring in the manner established by the Board or directing the offender to pay, in the manner specified by the court, an amount of money for the purposes of environmental effects monitoring;

  • (d) directing the offender to make changes to their environmental protection program that are satisfactory to the Board;

  • (e) directing the offender to have an environmental audit conducted by a person of a class and at the times specified by the Board and directing the offender to take the measures that the Board considers appropriate to remedy any deficiencies revealed during the audit;

  • (f) directing the offender to pay to Her Majesty in right of Canada, for the purpose of promoting the conservation, protection or restoration of the environment, or to pay into the Environmental Damages Fund — an account in the accounts of Canada — an amount of money that the court considers appropriate;

  • (g) directing the offender to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection;

  • (h) directing the offender to notify, at the offender’s own cost and in the manner specified by the court, any person aggrieved or affected by the offender’s conduct of the facts relating to the commission of the offence and of the details of the punishment imposed, including any orders made under this subsection;

  • (i) directing the offender to post a bond or pay an amount of money into court that the court considers appropriate to ensure that the offender complies with all or part of any prohibition, direction, requirement or condition that is specified in the order;

  • (j) directing the offender to perform community service, subject to any reasonable conditions that may be imposed by the court;

  • (k) directing the offender to pay, in the manner prescribed by the court, an amount of money to environmental, health or other groups to assist in their work;

  • (l) directing the offender to pay, in the manner prescribed by the court, an amount of money to an educational institution including for scholarships for students enrolled in studies related to the environment;

  • (m) requiring the offender to comply with any conditions that the court considers appropriate in the circumstances for securing the offender’s good conduct and for preventing the offender from repeating the same offence or committing another offence under this Act; and

  • (n) prohibiting the offender from applying for any new authorization under this Act during any period that the court considers appropriate.

• Marginal note:Coming into force and duration of order

  (2) An order made under subsection (1) comes into force on the day on which the order is made or on any other day that the court may determine, but shall not continue in force for more than three years after that day.

• Marginal note:Publication

  (3) If an offender does not comply with an order requiring the publication of facts relating to the offence and the details of the punishment, the Board may, in the manner that the court directed the offender, publish those facts and details and recover the costs of publication from the offender.

• Marginal note:Debt due to Her Majesty

  (4) If the Board incurs publication costs under subsection (3), the costs constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.

Marginal note:Variation of sanctions

• 132.2 (1) Subject to subsection (2), if a court has made, in relation to an offender, an order under section 132.1, the court may, on application by the offender or the Board, require the offender to appear before it and, after hearing the offender and the Board, may vary the order in one or more of the following ways that the court considers appropriate because of a change in the offender’s circumstances since the order was made:

  • (a) by making changes to any prohibition, direction, requirement or condition that is specified in the order or by extending the time during which the order is to remain in force for any period that is not more than one year; or

  • (b) by decreasing the time during which the order is to remain in force or by relieving the offender, either absolutely or partially or for any period, of compliance with any condition that is specified in the order.

• Marginal note:Notice

  (2) Before varying the order under subsection (1), the court may direct that notice be given to any persons that the court considers to be interested and may hear any of those persons.

Marginal note:Subsequent applications with leave

132.3 If an application made under subsection 132.2(1) in relation to an offender has been heard by a court, no other application shall be made under section 132.2 in relation to the offender except with leave of the court.

Marginal note:Recovery of fines and amounts

132.4 If a person is found guilty of an offence under this Act and a fine that is imposed is not paid when required, or if a court orders an offender to pay an amount under subsection 132.1(1) or 132.2(1) and the amount is not paid, the prosecutor may, by filing the conviction or order, as the case may be, enter as a judgment the amount of the fine or the amount ordered to be paid, and costs, if any, in any court of competent jurisdiction in Canada, and the judgment is enforceable against the person in the same manner as if it were a judgment rendered against them in that court in civil proceedings.

Report to Parliament

Marginal note:Report to Parliament

133 The Board shall, within four months after the end of each fiscal year, submit to the Minister a report on the activities of the Board under this Act for that fiscal year, and the Minister shall cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the day on which the report is received.

PART IXAdministrative Monetary Penalties

Board’s Powers

Marginal note:Regulations

• 134 (1) The Board may, with the approval of the Governor in Council, make regulations

  • (a) designating as a violation that may be proceeded with in accordance with this Act

    • (i) the contravention of any specified provision of this Act or of any of its regulations,

    • (ii) the contravention of any order or decision, or of any order or decision of any specified class of orders or decisions, made under this Act, or

    • (iii) the failure to comply with any term or condition of

      • (A) any certificate, licence or permit or of any specified class of certificate, licence or permit, or

      • (B) any leave or exemption granted under this Act or of any specified class of leave or exemption granted under this Act;

  • (b) respecting the determination of or the method of determining the amount payable as the penalty, which may be different for individuals and other persons, for each violation; and

  • (c) respecting the service of documents required or authorized under section 139, 144 or 147, including the manner and proof of service and the circumstances under which documents are considered to be served.

• Marginal note:Maximum

  (2) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for a violation must not be more than twenty-five thousand dollars, in the case of an individual, and one hundred thousand dollars in the case of any other person.

Marginal note:Powers

135 The Board may

• (a) establish the form of notices of violation;

• (b) designate persons or classes of persons who are authorized to issue notices of violation;

• (c) establish, in respect of each violation, a short-form description to be used in notices of violation; and

• (d) designate persons or classes of persons to conduct reviews under section 147.

Violations

Marginal note:Commission of violation

• 136 (1) Every person who contravenes or fails to comply with a provision, order, decision, term or condition designated under paragraph 134(1)(a) commits a violation and is liable to a penalty of an amount to be determined in accordance with the regulations.

• Marginal note:Purpose of penalty

  (2) The purpose of the penalty is to promote compliance with this Act and not to punish.

Marginal note:Liability of directors, officers, etc.

137 If a corporation commits a violation, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to a penalty of an amount to be determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Act.

Marginal note:Proof of violation

138 In any proceedings under this Act against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee, or agent or mandatary, of the person, whether or not the employee, agent or mandatary is identified or proceeded against in accordance with this Act.

Marginal note:Issuance and service of notice of violation

• 139 (1) If a person designated under paragraph 135(b) believes on reasonable grounds that a person has committed a violation, the designated person may issue a notice of violation and cause it to be served on the person.

• Marginal note:Contents

  (2) The notice of violation must

  • (a) name the person that is believed to have committed the violation;

  • (b) set out the relevant facts surrounding the violation;

  • (c) set out the amount of the penalty for the violation;

  • (d) inform the person of their right to request a review with respect to the violation or the amount of the penalty, and of the prescribed period within which that right must be exercised;

  • (e) inform the person of the manner of paying the penalty set out in the notice; and

  • (f) inform the person that, if they do not pay the penalty or exercise their right referred to in paragraph (d), they will be considered to have committed the violation and that they are liable to the penalty set out in the notice.

Rules about Violations

Marginal note:Certain defences not available

• 140 (1) A person named in a notice of violation does not have a defence by reason that the person

  • (a) exercised due diligence to prevent the commission of the violation; or

  • (b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.

• Marginal note:Common law principles

  (2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under this Act applies in respect of a violation to the extent that it is not inconsistent with this Act.

Marginal note:Continuing violation

141 A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.

Marginal note:Violation or offence

• 142 (1) Proceeding with any act or omission as a violation under this Act precludes proceeding with it as an offence under this Act, and proceeding with it as an offence under this Act precludes proceeding with it as a violation under this Act.

• Marginal note:Violations not offences

  (2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.

Marginal note:Limitation or prescription period

143 No notice of violation in respect of a violation may be issued more than two years after the day on which the subject matter of the violation arises.

Reviews

Marginal note:Right to request review

144 A person who is served with a notice of violation may, within 30 days after the day on which it is served, or within any longer period that the Board allows, make a request to the Board for a review of the amount of the penalty or the facts of the violation, or both.

Marginal note:Correction or cancellation of notice of violation

145 At any time before a request for a review in respect of a notice of violation is received by the Board, a person designated under paragraph 135(b) may cancel the notice of violation or correct an error in it.

Marginal note:Review

• 146 (1) On receipt of a request made under section 144, the Board shall conduct the review or cause the review to be conducted by a person designated under paragraph 135(d).

• Marginal note:Restriction

  (2) The Board shall conduct the review if the notice of violation was issued by a person designated under paragraph 135(d).

Marginal note:Object of review

• 147 (1) The Board or the person conducting the review shall 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.

• Marginal note:Determination

  (2) The Board or the person conducting the review shall render 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 Board 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 Board or the person, as the case may be, shall correct the amount of the penalty.

• Marginal note:Responsibility

  (4) If the Board 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 21(1), 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 Board.

Marginal note:Burden of proof

148 If the facts of a violation are reviewed, the person who issued the notice of violation shall establish, on a balance of probabilities, that the person named in it committed the violation identified in it.

Responsibility

Marginal note:Payment

149 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

150 A person that neither pays the penalty imposed under this Act nor requests a review in the prescribed period is considered to have committed the violation and is liable to the penalty.

Recovery of Penalties

Marginal note:Debts to Her Majesty

• 151 (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered in the Federal Court or any other court of competent jurisdiction.

• Marginal note:Limitation period

  (2) No proceedings to recover the debt may be instituted more than five years after the day on which the debt becomes payable.

Marginal note:Certificate

• 152 (1) The Board may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection 151(1).

• 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.

General

Marginal note:Admissibility of documents

153 In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 139(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.

Marginal note:Publication

154 The Board may make public the nature of a violation, the name of the person who committed it and the amount of the penalty.