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

Marginal note:Regulations — excluded periods

291.1 The Regulator may make regulations prescribing, for the purposes of subsection 262(6), the circumstances in which periods may be excluded from the calculation of the time limit.

Offences

Marginal note:Offence and punishment

• 292 (1) Every person who contravenes section 267, subsection 272(1), 273(1) or (2), 295(2) or (3), an order made under subsection 273(3) or an order or regulation made under section 275 is guilty of an offence and is liable

  • (a) on conviction on indictment, to a fine of not more than $1,000,000 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 379(2) to (6)

  (2) Subsections 379(2) to (6) apply, with any modifications that the circumstances require, in respect of an offence under this section.

Marginal note:Offence

• 293 (1) Every person who contravenes a regulation made under section 270 is guilty of an offence punishable on summary conviction.

• Marginal note:Defence

  (2) A person is not to be found guilty of an offence under this section if they establish that they exercised due diligence to prevent the commission of the offence.

Application of Certain Provisions

Marginal note:Certificate or order before June 1, 1990

• 294 (1) Sections 182 and 199 to 211 and Part 6, except sections 315 to 318, 335, 341 and 342, apply in respect of international power lines in respect of which a certificate was issued under the National Energy Board Act before June 1, 1990, or an order was made under subsection 58(2) of that Act 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 power line or the person who operates the line in respect of which the order was made;

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

  • (c) hydrocarbons or any other commodity were a reference to electricity.

• Marginal note:Exception

  (2) A reference to an abandoned pipeline in the provisions referred to in subsection (1) is not a reference to an abandoned international or interprovincial power line.

Marginal note:Terms and conditions before July 3, 2013

• 295 (1) Terms and conditions in respect of any international or interprovincial power line that were, at any time before July 3, 2013, imposed under section 58.29 or 108 of the National Energy Board Act or by the Minister of Transport under the Canadian Navigable Waters Act apply as if they were 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 July 3, 2013, the Minister of Transport had provided under section 58.3 or 108 of the National Energy Board Act that leave under either section, 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, a person must not construct the power line otherwise than in accordance with those orders, regulations, plans and specifications or as specified by the Commission of the Regulator.

• Marginal note:Construction without leave

  (3) If, at any time before July 3, 2013, the National Energy Board had provided under section 58.33 or 108 of the National Energy Board Act that leave under section 58.29 or 108 of that Act, as the case may be, was not necessary because the power line was to be constructed in accordance with certain orders or regulations, a person must not construct the power line otherwise than in accordance with those orders or regulations or as specified by the Commission of the Regulator.

PART 5Offshore Renewable Energy Projects and Offshore Power Lines

Marginal note:Definitions

• 296 (1) The following definitions apply in this Part.

  authorization

  authorization means an authorization issued under section 298. (autorisation)

  debris

  debris means any facility, equipment or system that was put in place in the course of any work or activity required to be authorized under this Part and that has been abandoned without an authorization, or anything that has broken away or been jettisoned or displaced in the course of any such work or activity. (débris)

• Marginal note:Application

  (2) A reference in this Part to “in a province” is, in relation to the Northwest Territories, a reference to “in the onshore, as defined in section 2 of the Northwest Territories Act”.

Prohibition

Marginal note:Prohibition — work or activity

297 A person must not, except in accordance with an authorization,

• (a) carry on, in the offshore area, any work or activity that is related to an offshore renewable energy project or to an offshore power line; or

• (b) carry on any work or activity to construct, operate or abandon any part of an offshore power line that is in a province.

Authorizations

Marginal note:Issuance

• 298 (1) On application, the Commission may issue an authorization for

  • (a) each work or activity that is proposed to be carried on, in the offshore area, in relation to an offshore renewable energy project or to an offshore power line; and

  • (b) each work or activity that is proposed to be carried on to construct, operate or abandon any part of an offshore power line that is in a province.

• Marginal note:Contents of application

  (2) An application must include any information that may be required by the Regulator, or prescribed by regulation, with respect to the proposed work or activity and to the offshore renewable energy project or offshore power line, including information with respect to any facility, equipment, system or vessel related to the project or power line.

• Marginal note:Factors to consider

  (3) In determining whether to issue an authorization, the Commission must take into account — in light of, among other things, any Indigenous knowledge that has been provided to the Commission and scientific information and data — all considerations that appear to it to be relevant and directly related to the offshore renewable energy project or offshore power line, including

  • (a) the environmental effects, including any cumulative environmental effects;

  • (b) the safety and security of persons and the protection of property and the environment;

  • (c) the health, social and economic effects, including with respect to the intersection of sex and gender with other identity factors;

  • (d) the interests and concerns of the Indigenous peoples of Canada, including with respect to their current use of lands and resources for traditional purposes;

  • (e) the effects on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982;

  • (f) the extent to which the effects of the project or power line hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change; and

  • (g) any relevant assessment referred to in section 92, 93 or 95 of the Impact Assessment Act.

• Marginal note:Time limit

  (4) The Commission must, within the time limit specified by the Lead Commissioner, issue the authorization or dismiss the application.

• Marginal note:Maximum time limit

  (5) The specified time limit must be no longer than 300 days after the day on which the applicant has, in the Commission’s opinion, provided a complete application.

• Marginal note:Excluded period

  (6) In the circumstances prescribed by regulations made under section 312.1, the Lead Commissioner may specify that a period is to be excluded from the calculation of the time limit within which the Commission must make its decision. The Lead Commissioner must provide reasons for doing so.

• Marginal note:Extension

  (7) The Minister may, by order, grant one or more extensions of the time limit specified under subsection (4).

• Marginal note:Publication

  (8) The Commission must make public the time limit specified under subsection (4), any period that is excluded and the reasons for the exclusion and any extension of time granted under subsection (7).

• Marginal note:Conditions of authorization

  (9) An authorization is subject to any conditions that may be imposed by the Commission or under the regulations, including conditions with respect to

  • (a) approvals;

  • (b) deposits of money;

  • (c) liability for loss, damage, costs or expenses related to debris;

  • (d) the carrying out of safety studies or environmental programs or studies; and

  • (e) certificates of fitness and who may issue them.

• Marginal note:Compliance

  (10) Every authorization is subject to the condition that the provisions of this Act and of the regulations, as well as every order made under the authority of this Act, will be complied with.

• Marginal note:Continuation of jurisdiction and obligation

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

Marginal note:Impact Assessment Act

299 If an application under section 298 relates to a designated project, as defined in section 2 of the Impact Assessment Act, that is subject to an impact assessment under that Act,

• (a) despite the time limit established under subsections 298(4) and (5), the Commission must make its decision under subsection 298(4) within seven days after the day on which the decision statement with respect to the project is posted on the Internet under section 66 of that Act;

• (b) the Commission must make its decision under subsection 298(4) solely on the basis of the report referred to in paragraph 51(1)(d) of that Act; and

• (c) subsections 298(3) and (6) to (8) do not apply with respect to the application.

Marginal note:Variation or transfer

• 300 (1) The Commission may, on application or on its own initiative, vary an authorization and may, on application, transfer an authorization.

• Marginal note:Conditions

  (2) In varying or transferring an authorization, the Commission may impose any conditions in addition to or in lieu of any conditions to which the authorization was previously subject.

Marginal note:Suspension or revocation

• 301 (1) The Commission may, by order, suspend or revoke an authorization if the holder applies for or consents to the suspension or revocation or the holder has contravened a condition of the authorization.

• Marginal note:Notice

  (2) The Commission must not make an order under subsection (1) for a contravention unless the Commission provides the holder with notice of the alleged contravention and gives them an opportunity to be heard.

Liability and Financial Requirements

Marginal note:Recovery of loss, etc., caused by debris

• 302 (1) If, as a result of debris or as a result of any action or measure taken in relation to debris, there is a loss of non-use value relating to a public resource or any person incurs actual loss or damage, or if Her Majesty in right of Canada or a province reasonably incurs any costs or expenses in taking any action or measure in relation to debris,

  • (a) all persons to whose fault or negligence the debris is attributable or who are by law responsible for others to whose fault or negligence the debris is attributable are jointly and severally, or solidarily, liable, to the extent determined according to the degree of the fault or negligence proved against them, for that loss, actual loss or damage and for those costs and expenses; and

  • (b) the person who is required to obtain an authorization in respect of the work or activity from which the debris originated is liable, without proof of fault or negligence, up to the applicable limit of liability that is determined under this section, for that loss, actual loss or damage and for those costs and expenses.

• Marginal note:Vicarious liability for contractors

  (2) A person who is required to obtain an authorization and who retains, to carry on a work or activity for which an authorization is required, the services of a contractor to whom paragraph (1)(a) applies is jointly and severally, or solidarily, liable with that contractor for any actual loss or damage, costs and expenses and loss of non-use value described in subsection (1).

• Marginal note:Limits of liability

  (3) For the purposes of paragraph (1)(b), the limits of liability are

  • (a) in respect of a work or activity in any area of land or submarine area referred to in paragraph 6(1)(a) of the Arctic Waters Pollution Prevention Act, the amount by which $1 billion exceeds the amount prescribed under section 9 of that Act in respect of any activity or undertaking engaged in or carried on by any person described in paragraph 6(1)(a) of that Act; or

  • (b) in respect of any other work or activity for which an authorization is required, the amount of $1 billion.

• Marginal note:Lesser amount

  (4) The Minister may, by order and on the Commission’s recommendation, approve an amount that is less than the amount referred to in paragraph (3)(a) or (b) in respect of a person who is required to obtain an authorization.

• Marginal note:Increase in limits of liability

  (5) The Governor in Council may, by regulation, on the recommendation of the Minister, increase the amounts referred to in subsection (3).

• Marginal note:Liability under another law — paragraph (1)(b)

  (6) If a person is liable under paragraph (1)(b) with respect to an occurrence and the person is also liable under any other Act of Parliament, without proof of fault or negligence, for the same occurrence, the person is liable up to the greater of the applicable limit of liability that is determined under the applicable subsection of this section and the limit up to which the person is liable under the other Act. If the other Act does not set out a limit of liability, the limits determined under this section do not apply.

• Marginal note:Costs and expenses not recoverable under Fisheries Act

  (7) 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:Action — loss of non-use value

  (8) Only Her Majesty in right of Canada or a province may bring an action to recover a loss of non-use value described in subsection (1).

• Marginal note:Claims

  (9) All claims under this section may be sued for and recovered in any court of competent jurisdiction in Canada. Claims in favour of persons incurring actual loss or damage described in subsection (1) are to be distributed pro rata and rank in priority over claims for costs and expenses described in that subsection, and the claims for costs and expenses rank in priority over claims to recover a loss of non-use value described in that subsection.

• Marginal note:Saving

  (10) Subject to subsections (7) and (8), 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 not inconsistent with this section.

• Marginal note:Limitation period or prescription

  (11) Proceedings in respect of claims under this section may be instituted no later than the third anniversary of the day on which the loss, damage, costs or expenses occurred but in no case after the sixth anniversary of the day the facility, equipment or system in question was abandoned or the material in question broke away or was jettisoned or displaced.

• Marginal note:Definition of actual loss or damage

  (12) In this section, actual loss or damage includes loss of income, including future income, and, with respect to any Indigenous peoples of Canada, loss of hunting, fishing and gathering opportunities. It does not include loss of income recoverable under subsection 42(3) of the Fisheries Act.