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

Claims for Compensation

Marginal note:Application

• 160 (1) Any person, partnership or unincorporated organization or federal, provincial or municipal government or any Indigenous 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 must

  • (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 must notify the claimant, the designated company and the Regulator that the claim has been assigned.

• Marginal note:Powers, duties and functions

  (4) A panel has the powers, other than the power described in section 159, and the duties and functions of the Tribunal with respect to any claim for compensation that is before that panel.

Marginal note:Public hearings

161 Tribunal hearings are to be held in public. However, a Tribunal may hold all or part of a hearing in private if it considers that

• (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

162 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 must advise the Regulator, by notice, of the amount awarded.

Marginal note:Determining compensation

• 163 (1) A Tribunal must 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 must, 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 must determine the amount of those costs.

• Marginal note:Notice — decision

  (2) The Tribunal must 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 must also advise the Regulator by that notice.

• Marginal note:Content of notice

  (3) The notice must 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 Regulator

Marginal note:Amount to be paid

• 164 (1) The Regulator must, subject to section 165 and within the prescribed period, pay to the claimant

  • (a) the amount of interim compensation indicated in the notice referred to in section 162;

  • (b) subject to the regulations, the amount of compensation and costs indicated in the notice referred to in subsection 163(2) and any interest payable; and

  • (c) if the amount of compensation and costs indicated in the notice referred to in subsection 169(2) is more than the amount paid by the Regulator 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 must advise the Regulator, by notice, of the amount awarded and the Regulator must pay that amount.

Marginal note:Total amount

165 The total amount that the Regulator pays under subsection 164(1) must not be more than the portion established by the Minister of Finance under subsection 171(2).

Marginal note:Recovery of overpayment

166 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 Regulator under subsection 164(1);

• (b) any amount paid to a claimant under paragraph 164(1)(b) in respect of a Tribunal’s decision that is rescinded; and

• (c) if the amount paid by the Regulator under paragraph 164(1)(b) in respect of a Tribunal’s decision that is amended under subsection 169(1) is more than the amount of compensation and costs indicated in the notice referred to in subsection 169(2), the amount that is equal to the difference between those amounts.

Marginal note:Report

167 Within 90 days after the day on which a Tribunal is established, and every 90 days after that, the Regulator must 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 Regulator has paid under subsections 164(1) and (3).

Reconsideration

Marginal note:Reconsideration

• 168 (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 considers 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 must notify the applicant, the designated company and the Regulator that the Tribunal will reconsider its decision.

Marginal note:Determining compensation

• 169 (1) If, on reconsideration, a Tribunal decides to amend its decision, it must 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 must, 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 must determine the amount of those costs.

• Marginal note:Notice — decision

  (2) The Tribunal must advise the applicant, the designated company and the Regulator, 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 must 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

170 Subject to section 168, 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

• 171 (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 141(2);

  • (b) to reimburse the costs and expenses referred to in subsection 141(5);

  • (c) to pay the costs of publishing the notice referred to in section 145;

  • (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 151;

  • (g) to pay the costs of providing a Tribunal with any of the assistance, facilities or supplies referred to in section 153;

  • (h) to pay the amounts that the Regulator must pay under subsection 164(1); and

  • (i) to pay the fees and travel expenses referred to in subsection 164(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 must, without delay, publish in the Canada Gazette a notice setting out the portion established by the Minister of Finance.

• Marginal note:Repayment

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

Regulations

Marginal note:Regulations — Tribunal

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

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

• (b) respecting conflicts 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, and

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

• (f) respecting the hiring 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

• 173 (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 must 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 Regulator pays under subsection 164(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 164(1);

  • (h) providing that a payment of any amount that the Regulator pays under subsection 164(1) be postponed;

  • (i) providing for the payment of any amount that the Regulator pays under subsection 164(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 this section and sections 143 to 172.

• 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.

Sentencing Respecting Releases from Pipelines

Marginal note:Sentencing principles

• 174 (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 must 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 the court must consider 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) 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;

  • (g) the offender has a history of non-compliance with federal or provincial legislation that relates to safety or environmental conservation or protection; and

  • (h) 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.

• Marginal note: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 must give reasons for that decision.