Law:Energy Supplies Emergency Act

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R.s.c., 1985, c. E-9

An Act to provide a means to conserve the supplies of energy within Canada during periods of national emergency caused by shortages or market disturbances affecting the national security and welfare and the economic stability of Canada


Contents

Short Title

Short title

1. This Act may be cited as the Energy Supplies Emergency Act.

1978-79, c. 17, s. 1.


Interpretation

Definitions

2. (1) In this Act,

“Board”

« Office »

“Board” means the Energy Supplies Allocation Board established by section 3;

“controlled product”

« produit contrôlé »

“controlled product” means any product or thing the supplies of which are allocated under a mandatory allocation program established pursuant to Part I;

“mandatory allocation program”

« programme de répartition obligatoire »

“mandatory allocation program” means a program established pursuant to Part I to control the allocation of supplies of a product at the level of the suppliers and wholesale customers thereof;

“petroleum” or “petroleum product”

« pétrole » ou « produit pétrolier »

“petroleum” or “petroleum product” means crude oil or other hydrocarbon or mixture of hydrocarbons recovered in liquid or solid state from a natural reservoir, any hydrocarbon or mixture thereof, in liquid or solid state, that results from the processing or refining of crude oil or other hydrocarbon, and natural gasoline or condensate resulting from the production, processing or refining of natural gas or a derivative of natural gas;

“rationing program”

« programme de rationnement »

“rationing program” means a mandatory allocation program that is extended and converted pursuant to section 29 in respect of any controlled product;

“sitting day”

« jour de séance »

“sitting day”, in respect of a House of Parliament, means a day on which that House is sitting;

“supplier”

« fournisseur »

“supplier” means an importer, refiner, wholesale marketer, jobber, distributor, terminal operator, broker or any other person or association of persons who supplies any controlled product in bulk at any or all levels of wholesale distribution whether or not the supplier is himself a wholesale customer for the controlled product;

“wholesale customer”

« acheteur en gros »

“wholesale customer”spa means any person who purchases any controlled product in bulk at the wholesale level and includes Her Majesty in right of Canada or any province, any agent thereof and any refiner, distributor, jobber, dealer, public utility or operator of aircraft, railway, ships, trucks or other transportation facilities.

Definition of "regulation under this Act"

(2) In this Act, the expression “regulation under this Act” includes an order made by the Board pursuant to any regulations made under Part I or II by the Board, and a regulation under this Act and any order or direction of the Governor in Council or the Board under this Act shall be deemed to be a statutory instrument under the Statutory Instruments Act.

Large volume users

(3) The Governor in Council may, by order,

(a) designate any person as being a large volume user of a controlled product, or

(b) prescribe any class of persons the members of which, in the opinion of the Governor in Council, are large volume users of a controlled product,

and a person so designated or of such class of persons who purchases the controlled product, in bulk or otherwise, at the retail level shall, for the purposes of this Act, be deemed to be a wholesale customer for the controlled product.

Extended meaning of "supplier" and "wholesale customer"

(4) For the purposes of this Act, any person or association of persons who supplies any controlled product, in bulk or otherwise, at any level of wholesale or retail distribution for use in the heating of any premises or in the operation of a farm shall be deemed to be a supplier of the controlled product and any person who purchases any controlled product at any level of wholesale or retail distribution for such a use shall be deemed to be a wholesale customer for the controlled product.

R.S., 1985, c. E-9, s. 2; R.S., 1985, c. 22 (4th Supp.), s. 64; 1990, c. 2, s. 1.


Energy Supplies Allocation Board

Board established

3. There is hereby established an Energy Supplies Allocation Board consisting of a chairman and not more than six other members to be appointed by the Governor in Council to hold office during pleasure.

R.S., 1985, c. E-9, s. 3; 1990, c. 2, s. 2.

Remuneration

4. The Chairman and the other members of the Board shall be paid such remuneration as may be fixed by the Governor in Council and are entitled to be paid reasonable travel and living expenses incurred in the course of their duties while absent from their ordinary places of residence.

1978-79, c. 17, s. 4.

Staff

5. (1) Such other officers and employees as are necessary for the proper conduct of the work of the Board shall be appointed in accordance with thePublic Service Employment Act.

Technical assistance

(2) The Board may engage on a temporary basis the services of persons having technical or specialized knowledge to act as agents or mandataries of the Board in administering the allocation of any controlled product and to advise and assist the Board in carrying out its duties under this Act; and, with the approval of the Treasury Board, the Board may fix and pay the remuneration and expenses of those persons.

Secondment, etc.

(3) The Governor in Council may, on the request of the Board, direct any department or agency of the Government of Canada

(a) to second to the Board, for specified periods, officers and employees, and

(b) to make available to the Board, for specified periods, specified services or the use of specified facilities,

that are necessary for the proper conduct of the work of the Board.

Advice and assistance

(4) The Board may, subject to any provisions relating to privileged information, obtain the advice and assistance of any department or agency of the Government of Canada.

R.S., 1985, c. E-9, s. 5; 2004, c. 25, s. 135.

Previous VersionHead office

6. (1) The head office of the Board shall be in the National Capital Region described in the schedule to the National Capital Act.

Meetings

(2) The Board may meet at such times and places in Canada as the Chairman of the Board deems advisable.

1978-79, c. 17, s. 6.

Chief executive officer

7. (1) The Chairman of the Board is the chief executive officer of the Board and has supervision over and direction of the work and staff of the Board and shall preside at meetings of the Board.

Vice-Chairman

(2) One of the members of the Board may be designated by the Governor in Council to be Vice-Chairman thereof and in the event of the absence or incapacity of the Chairman or if the office of Chairman is vacant, the Vice-Chairman may exercise all the powers and perform all the functions of the Chairman.

1978-79, c. 17, s. 7.

Status of Board

8. (1) The members of the Board and any persons engaged under subsection 5(2) shall be deemed to be persons employed in the federal public administration.

Non-application of P.S.E.A. to certain persons

(2) Persons engaged by the Board under subsection 5(2) shall be deemed not to form part of the public service for the purposes of the Public Service Employment Act.

R.S., 1985, c. E-9, s. 8; 2003, c. 22, ss. 224(E), 225(E).

Previous VersionBy-laws

9. Subject to this Act, the Board may make by-laws generally for carrying out the work of the Board and respecting the manner of conducting the business of the Board, the management of its affairs and the duties of its employees.

1978-79, c. 17, s. 9; 1980-81-82-83, c. 112, s. 46.

Delegation

10. (1) The Board may in writing authorize one or more of its members or a senior officer of the Board to exercise and perform on behalf of the Board any of the powers or duties of the Board under this Act except the powers or duties of the Board relating to the making of regulations or orders.

Idem

(2) The Board may by order delegate, in whole or in part, to any person, body or authority any of the powers or duties of the Board arising out of any regulation under this Act, and that person, body or authority may exercise the powers and shall perform the duties so delegated.

1978-79, c. 17, s. 9; 1980-81-82-83, c. 112, s. 46.

Duties

11. (1) Subject to this Act and any directions to the Board issued by the Governor in Council under the authority of this Act, the Board may exercise such powers and shall perform such duties as may be conferred or imposed on it under this Act; and during any period in which the Board is not required to administer any mandatory allocation program or rationing program under this Act, it shall prepare, review and maintain contingency plans in readiness to exercise such powers and perform such duties as may be conferred or imposed on it pursuant to this Act.

Continuing studies and reports

(2) The Board shall study and keep under review all matters relevant to a full understanding of the international petroleum supply situation and shall from time to time report thereon to the Minister of Natural Resources together with such recommendations as appear to the Board to be appropriate and relevant to ensuring that Canada is fully prepared to meet any petroleum supply emergency with well prepared and timely plans for action.

R.S., 1985, c. E-9, s. 11; 1994, c. 41, s. 37.

International Energy Agency representative

12. Canada’s representative on the Standing Group on Emergency Questions within the International Energy Agency shall be an official of the Board or the Department of Natural Resources and the representative shall, in fulfilling the representative’s functions, be responsible to the Chairman of the Board and the Minister of Natural Resources.

R.S., 1985, c. E-9, s. 12; 1990, c. 2, s. 3; 1994, c. 41, ss. 37, 38.

Protection from personal liability

13. (1) No action or other proceeding for damages lies or shall be instituted against the Board, its members or a minister, servant or agent of Her Majesty in right of Canada for or in respect of anything done or omitted to be done, or purported to be done or omitted to be done, in good faith under this Act or any order or regulation made thereunder.

Crown not relieved of liability

(2) Subsection (1) does not relieve Her Majesty in right of Canada of liability for the acts or omissions described in that subsection and Her Majesty in right of Canada is liable under the Crown Liability and Proceedings Act or any other law as if that subsection had not been enacted.

R.S., 1985, c. E-9, s. 13; R.S., 1985, c. 22 (4th Supp.), s. 65; 1993, c. 34, s. 63.

Instructions and reports

14. (1) The Board shall act under the instructions of the Governor in Council and report to the Minister of Natural Resources from time to time on its activities under this Act.

Report to Minister

(2) During any period in which a mandatory allocation program or a rationing program is in effect under this Act, the Board shall report in writing to the Minister of Natural Resources at the end of every month on its activities under this Act in that month.

Tabling

(3) All reports referred to in subsection (2) shall be laid before Parliament forthwith on the making thereof or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that Parliament is sitting.

R.S., 1985, c. E-9, s. 14; 1994, c. 41, s. 37.


Part I. Mandatory Allocation Of Supplies

Declaring national emergency

15. (1) When the Governor in Council is of the opinion that a national emergency exists by reason of actual or anticipated shortages of petroleum or disturbances in the petroleum markets that affect or will affect the national security and welfare and the economic stability of Canada, and that it is necessary in the national interest to conserve the supplies of petroleum products within Canada, the Governor in Council may, by order, so declare and by that order authorize the establishment of a program for the mandatory allocation of petroleum products within Canada in accordance with this Act.

Effective date

(2) An order made under subsection (1) is effective on the day on which it is made, but a motion for confirmation of the order shall be laid before each House of Parliament and be considered in accordance with section 46.

Effect of revocation

(3) Where an order made under subsection (1) is revoked, any mandatory allocation program instituted as a result of that order immediately terminates, but without prejudice to the previous operation of that program or anything duly done or suffered thereunder or any offence committed or any punishment incurred.

R.S., 1985, c. E-9, s. 15; R.S., 1985, c. 22 (4th Supp.), s. 66.

16. to 18. (Repealed, R.S., 1985, c. 22 (4th Supp.), s. 67)

Mandatory allocation program

19. (1) Where an order is made under section 15, the Board shall immediately prepare a mandatory allocation program in respect of petroleum to assure sufficient supplies of that product in the various parts of Canada by providing for a national and equitable distribution of petroleum products from the suppliers to the wholesale customers thereof.

Contents of program

(2) A mandatory allocation program shall

(a) designate the regions in which the program is to operate if it is not to extend to the whole of Canada;

(b) specify the petroleum products, the supplies of which are to be controlled under the program;

(c) set out the priorities of use or supply, or both, of the controlled product; and

(d) outline a system for allocation of supplies of the controlled product.

Duration

(3) If approved by the Governor in Council, a mandatory allocation program comes into force on such day as the Governor in Council may, by order, fix and terminates as provided under section 44.

1978-79, c. 17, s. 12; 1980-81-82-83, c. 112, s. 47.

Amending program

20. (1) The Governor in Council may, by order, amend a mandatory allocation program

(a) by providing that its operation be extended to other regions or all regions of Canada, or that its operation be reduced by excluding regions from the operation of the program;

(b) by adding any petroleum product to the program or removing any controlled product from the program; and

(c) by changing the priorities of use or supply, or both, of a controlled product and the outline of the system for allocation of supplies of a controlled product as set out or outlined at the commencement of the program.

Other related products

(2) The Governor in Council may, by order, add any product that is manufactured wholly or in part from petroleum to the mandatory allocation program and thereupon that product becomes a controlled product for the purpose of the allocation of the supplies thereof in Canada.

1978-79, c. 17, s. 12; 1980-81-82-83, c. 112, s. 47.

21. (Repealed, R.S., 1985, c. 22 (4th Supp.), s. 68)

Allocation of alternative fuels

22. (1) Where it is considered necessary to do so for the purpose of conserving the available supplies of such petroleum products as have been included in a mandatory allocation program, the Governor in Council may, by order, amend the mandatory allocation program by adding any alternative fuel thereto and establishing mandatory allocation thereof.

Application of Act

(2) When an alternative fuel has been added to the mandatory allocation program, this Act applies, with such modifications as the circumstances require, in respect of the alternative fuel to the like extent as if that alternative fuel were a petroleum product.

Definition of "alternative fuel"

(3) In this section, “alternative fuel” means natural gas and any product obtained therefrom that is capable of being used as a fuel and coal and any product obtained therefrom that is capable of being so used.

R.S., 1985, c. E-9, s. 22; R.S., 1985, c. 22 (4th Supp.), s. 69.

Supporting activities

23. Instead of including an alternative fuel, as defined in section 22, within a mandatory allocation program under this Act, the Board may, with the approval of the Governor in Council, enter into arrangements with provincial authorities whereby the alternative fuel will be regulated as to allocation of supply and pricing within the provinces in such manner as will best conserve the supplies within Canada of petroleum products.

1978-79, c. 17, s. 14.

Electric power

24. The Board may, with the approval of the Governor in Council, enter into arrangements with provincial authorities for the regulation and pricing by those provincial authorities of the supplies of electric power produced or used within a province for the purpose of reducing the demands on the available supplies within Canada of a petroleum product.

1978-79, c. 17, s. 15.

Regulations

25. (1) With the approval of the Governor in Council, the Board may make such regulations as may be necessary in the opinion of the Board to carry out effectively a mandatory allocation program for any controlled product and, without limiting the generality of the foregoing, may make regulations

(a) authorizing the Board to prescribe by order the dates when the allocation of supplies of a particular controlled product will commence;

(b) respecting the manner in which available supplies of a controlled product are to be determined and apportioned to wholesale customers;

(c) respecting the assigning of suppliers for wholesale customers and the extent to which those assigned suppliers must supply the wholesale customers with any controlled product;

(d) respecting the accumulation, storage and disposal of reserve supplies and inventory of any controlled product;

(e) respecting the supplying of information relating to past, present and forecast sales and purchases of the controlled product by suppliers and wholesale customers;

(f) respecting the keeping of accounts relating to the sales and purchases of any controlled product by suppliers and wholesale customers, and the making of those accounts available to the Board and its agents or mandataries;

(g) respecting the prohibiting or limiting of the sale of a controlled product by or to, or the purchase of a controlled product by, a wholesale customer in cases where the controlled product may be used in a wasteful or non-essential use and prescribing wasteful and non-essential uses of the controlled product;

(h) respecting the quality characteristics required of any controlled product being supplied to a class of wholesale customers or for a particular use;

(i) respecting such modification or revocation of existing contracts for the supply of any controlled product by suppliers and wholesale customers as may be necessary to make an allocation of supplies of the controlled product effective, and providing a means of determining what type of supply contract should be modified or revoked and in what circumstances;

(j) respecting the transfer of supplies of any controlled product between suppliers and between suppliers and wholesale customers and the transfer of wholesale customers between suppliers to achieve an equitable balance of sales among suppliers or to preserve the existing market position of suppliers in so far as practicable;

(k) respecting pooling and other arrangements that may be made by and between suppliers to supply wholesale customers for which those suppliers may have allocation obligations, and providing guidelines therefor in respect of price, quality and quantity provisions in contracts affected by those arrangements;

(l) respecting the prices at which any controlled product may be sold by suppliers to wholesale customers in particular market areas or generally and the charges for transportation between market areas except for transportation by means of a pipeline in respect of which there is in force a certificate of public convenience and necessity or other authority to operate a pipeline issued under the National Energy Board Act;

(m) determining market areas for any controlled product;

(n) respecting credit terms or payment schedules for wholesale customers required to assure the continuance, as nearly as may be, of the normal business practices of suppliers of any controlled product in a market are during the period of mandatory allocation of the controlled product;

(o) authorizing the reduction or withholding by suppliers of supplies of any controlled product to wholesale customers until any orders of the Board made pursuant to any regulations have been complied with;

(p) respecting the amelioration of hardship in particular cases arising out of inequities in or distortions of the allocation of supplies of any controlled product because of special circumstances;

(q) ensuring, in so far as practicable, the maintenance of supplies of the controlled product to independent retailers of that product consistent with any priorities of use established by the Board;

(r) providing for the making by the Board of such orders as may be necessary to effect any of the purposes for which regulations may be made under this section; and

(s) respecting such other matters or things, whether or not of a like kind to those referred to in paragraphs (a) to (r), as the Board considers necessary for the purpose of carrying out a mandatory allocation program for a controlled product.

Extent of authority

(2) A regulation under this Act may be conditional or unconditional, qualified or unqualified, and may be general or restricted to a specified area or a specified controlled product, a specified supplier or wholesale customer or a specified mediate or immediate use of a controlled product.

R.S., 1985, c. E-9, s. 25; 1990, c. 2, s. 4; 2001, c. 4, s. 79(F); 2004, c. 25, s. 136(E).

Previous VersionRegulating imports

26. (1) Where the Governor in Council considers it expedient to do so, he may order the Board to regulate the importation of any controlled product into Canada indefinitely or for such period as may be specified in the order.

Regulations

(2) For the purpose of carrying out an order under subsection (1), the Board may make regulations

(a) respecting the quantities and qualities of any controlled product imported or to be imported during such periods as may be prescribed by the Board;

(b) respecting the storage of imported supplies of any controlled product in market areas; and

(c) respecting such other matters or things in relation to the importation of the controlled product as may be necessary to support a mandatory allocation program for the controlled product.

Consultation with National Energy Board

(3) Before making regulations under this section, the Board shall consult with the National Energy Board to determine the extent to which that Board is regulating the importation of the controlled product in respect of which regulations are to be made under this section.

1978-79, c. 17, s. 17.

Regulating exports

27. (1) Where the Governor in Council considers it expedient to do so, he may order the Board to regulate the export of any controlled product indefinitely or for such period as may be specified in the order.

Regulations

(2) For the purpose of carrying out an order under subsection (1), the Board may make regulations

(a) respecting the quantities and qualities of any controlled product to be exported during such period as may be prescribed by the Board; and

(b) respecting such other matters or things in relation to the export of the controlled product as may be necessary to support a mandatory allocation program for the controlled product.

Consultation

(3) Before making regulations under this section, the Board shall consult with the National Energy Board to determine the extent to which that latter Board is then regulating the export of the controlled product in respect of which regulations are to be made under this section.

1978-79, c. 17, s. 18.

Conflict

28. Where there is a conflict between any regulation made under this Act and any provision of the National Energy Board Act or any regulation made thereunder, the regulation under this Act prevails.

1978-79, c. 17, s. 18.


Part Ii. Rationing Of Controlled Products

Consumer and other rationing

29. (1) Where the Governor in Council considers that the available supplies of a controlled product are or are likely to be in such short supply as to cause the mandatory allocation program to fail unless additional measures are taken, the Governor in Council may order the Board to extend the mandatory allocation program in respect of that controlled product by converting it into a program requiring that the purchase and sale of the controlled product at any or all levels, including the level of the final consumer or user, be made in such quantities, by such persons and for such uses as may be authorized by the Board on documentary evidence issued by the Board.

(2)�(Repealed, R.S., 1985, c. 22 (4th Supp.), s. 70)

R.S., 1985, c. E-9, s. 29; R.S., 1985, c. 22 (4th Supp.), s. 70.

Regulations

30. For the purpose of implementing an order under section 29, the Board may, with the approval of the Governor in Council, make regulations

(a) extending the mandatory allocation program established pursuant to Part I and converting it into a rationing program in respect of one or more controlled products;

(b) applying mandatory allocation of the supplies of the controlled product to retailers and retail customers under the rationing program;

(c) establishing categories of consumers of the controlled product and determining priorities of supply in respect of each category of consumer;

(d) establishing categories of use of the controlled product and providing for the prohibition or limiting of the supply of the controlled product to any categories of consumers or categories of uses;

(e) respecting the rationing of consumers by the issuing of coupons, permits or other written authority to sell or purchase quantities of the controlled product and the quantities to be made available within any period or periods of time to various categories of consumers;

(f) respecting the compiling of an inventory of the supplies of the controlled product held by retailers from time to time;

(g) respecting the establishment of local, regional and central rationing boards to supervise and administer the rationing program in the various parts of Canada;

(h) respecting the printing and distribution of written authorizations, coupons, permits, tickets or other documents required for the rationing program and the prices at which any of those printed materials may be sold and providing for the use to be made of the services of any department or agency of the Government of Canada in distributing, returning and accounting for any of those printed materials;

(i) respecting the keeping of accounts relating to sales and purchases of any controlled product and the making of those accounts available to the Board and its agents or mandataries;

(j) respecting the prices at which any controlled product may be sold to retailers and to the customers of retailers;

(k) providing for the making by the Board of such orders as may be necessary to effect any of the purposes for which regulations may be made under this section;

(l) notwithstanding anything in any other Act, authorizing and empowering banks to which the Bank Act applies, trust companies to which the Trust Companies Act applies and such other financial institutions as are specified in the regulations to perform such functions and duties relating to the administration and enforcement of an order made under section 29 as are specified in the regulations; and

(m) respecting such other matters or things, whether or not of a like kind to those referred to in paragraphs (a) to (l), as the Board considers necessary for the purpose of carrying out a rationing program.

R.S., 1985, c. E-9, s. 30; 1990, c. 2, s. 5; 2004, c. 25, s. 137(E).

Previous Version

Part Iii. General And Administration

Contractual Obligations

Contracts

31. (1) Where pursuant to a regulation under this Act any person is required to do or to omit to do anything contrary to the terms and conditions of any contract entered into by that person, the contract is modified to the extent necessary to enable compliance to be made with the requirements of the regulation.

Frustration

(2) Subsection (1) does not apply in circumstances where the modification to a contract, except to the extent that it would change the price at which a controlled product may or is to be sold under the contract, would impose on the parties a contract fundamentally different from that which they entered into.

Defence

(3) Without precluding any other defence available in law, it is a good defence to any action brought in any court for breach of contract

(a) arising out of a delay or a failure to provide, sell or offer for sale or exchange any product, or

(b) arising out of a delay or a failure to provide any service

that the delay or failure was caused solely by compliance with a regulation under this Act or with an order made by any authority pursuant to a direction of the Board under this Act.

R.S., 1985, c. E-9, s. 31; 1990, c. 2, s. 6.


Compensation

Compensation

32. (1) Subject to subsection (2) and the regulations made under section 32.1, the Minister of Natural Resources shall award reasonable compensation to any person who suffers deprivation of property as a result of anything done, or purported to be done, under this Act or any order or regulation made thereunder.

Release

(2) No compensation shall be paid to a person under this section unless that person, in consideration of the compensation, signs, in a form provided by the Minister of Natural Resources, a release of any right of action that the person may have against Her Majesty in right of Canada in respect of any deprivation of property as a result of any thing done, or purported to be done, under this Act or any order or regulation made thereunder.

R.S., 1985, c. E-9, s. 32; R.S., 1985, c. 22 (4th Supp.), s. 71; 1994, c. 41, s. 37.

Regulations

32.1 The Governor in Council may make regulations

(a) prescribing the form and manner of making applications for compensation under section 32, the information and evidence to be submitted in connection therewith and the procedure to be followed in the consideration of applications for compensation;

(b) prescribing the period within which applications for compensation must be made;

(c) prescribing the criteria to be used in determining the eligibility of any person for compensation;

(d) prescribing the methods and criteria to be used in assessing any deprivation of property for which compensation shall be paid;

(e) prescribing the maximum amount of compensation that may be paid to any person either generally or with respect to any particular deprivation of property;

(f) prescribing the terms and conditions for the payment of compensation;

(g) providing for the payment of compensation in a lump sum or in periodic payments;

(h) providing for pro rata payments of compensation;

(i) establishing priorities among persons applying for compensation on the basis of classes of persons or classes of deprivation of property or otherwise;

(j) respecting the giving of notices to persons affected by applications for compensation; and

(k) generally, for carrying into effect the purposes and provisions of section 32.

R.S., 1985, c. 22 (4th Supp.), s. 71.


Appeals

Assessor and Deputy Assessors

32.2 (1) The Governor in Council shall, from among the judges of the Federal Court, appoint an Assessor and such number of Deputy Assessors as the Governor in Council considers necessary to hear and determine appeals from decisions of the Minister under section 32 and, subject to this Part, may prescribe their jurisdiction.

Acting assessor

(2) The Governor in Council shall, from among the judges of the Federal Court, appoint an acting assessor to act in the place of the Assessor in the event of the Assessor’s absence or incapacity.

Deputy Assessor

(3) The Assessor may designate a Deputy Assessor to hear and determine any appeal under section 32.3 and, where the Assessor does so, the references in sections 32.4 and 32.5 to the "Assessor" shall be construed as including references to the "Deputy Assessor".

R.S., 1985, c. 22 (4th Supp.), s. 71.

Appeal

32.3 (1) Any person who has applied for compensation under section 32 and is not satisfied with the decision of the Minister thereon may appeal the decision to the Assessor.

Limitation period

(2) No appeal may be made under this section more than three months after the day on which the person applying for compensation receives notice of the Minister’s decision thereon or such longer period as the Assessor may, either before or after the expiration of that period of three months, allow for special reasons.

R.S., 1985, c. 22 (4th Supp.), s. 71.

Powers of Assessor

32.4 (1) On the hearing of an appeal under section 32.3, the Assessor may

(a) confirm the decision of the Minister;

(b) notwithstanding the maximum amount, if any, of compensation that may be paid to the person appealing, vary the decision of the Minister; or

(c) refer the matter back to the Minister for such further action as the Assessor may direct, including the calculation of compensation without regard to the maximum amount, if any, that may otherwise be paid.

Costs

(2) In any appeal under section 32.3, costs may be awarded to or against Her Majesty in right of Canada.

Decision final

(3) The decision of the Assessor on any appeal under section 32.3 is final and conclusive and, except for judicial review under the Federal Courts Act, is not subject to appeal to or review by any court.

Payment

(4) Where the Assessor varies a decision of the Minister by awarding compensation or increasing the amount of compensation awarded by the Minister or, on a matter referred back for further action, the Minister increases the amount of compensation previously awarded, the Minister shall pay that compensation or increased compensation, as the case may be.

R.S., 1985, c. 22 (4th Supp.), s. 71; 1993, c. 34, s. 64; 2002, c. 8, s. 182.

Previous VersionSittings and hearings

32.5 (1) The Assessor may sit and hear appeals at any place or places, and shall arrange for such sittings and hearings as may be required.

Expenses

(2) The Assessor is entitled to be paid such travel allowances as are paid for attendances as a judge of the Federal Court under the Judges Act.

R.S., 1985, c. 22 (4th Supp.), s. 71.

Procedure

32.6 The Assessor may, with the approval of the Governor in Council, make such rules respecting the conduct of appeals and the procedure for the bringing of appeals as the Assessor deems necessary to enable the discharge of the Assessor’s duties under this Part.

R.S., 1985, c. 22 (4th Supp.), s. 71.

Registrar

32.7 The Governor in Council may appoint a registrar of appeals and such other persons as the Governor in Council considers necessary to deal with appeals under section 32.3.

R.S., 1985, c. 22 (4th Supp.), s. 71.

Payment out of C.R.F.

32.8 Compensation and costs awarded against Her Majesty in right of Canada under this Part shall be paid out of the Consolidated Revenue Fund.

R.S., 1985, c. 22 (4th Supp.), s. 71.


Restrictive Trade Practices

Application for exemption

33. (1) Where, in order to comply with any request in writing from the Minister to develop or carry out an implementation plan or arrangement in relation to this Act or with any regulation under this Act, a person would be required to enter into any agreement, arrangement or course of action that might cause that person to contravene the Competition Act, that person may apply to the Board for an order exempting that person from that Act in respect of that particular agreement, arrangement or course of action.

Consultation with Minister of Industry

(2) In considering an application under subsection (1), the Board shall consult with the Minister of Industry regarding the extent to which the agreement, arrangement or course of action in respect of which application is made for exemption from the Competition Act would create or maintain restrictive trade practices or situations inconsistent with the Competition Act.

Exemption Order

(3) After consulting with the Minister of Industry regarding any alternative agreement, arrangement or course of action that would avoid or overcome or mitigate any restrictive trade practices or situations inconsistent with the Competition Act, the Board may, by order, exempt the applicant and such other persons as it deems necessary from the provisions of the Competition Act in respect of any agreement, arrangement or course of action described in the exemption order, and thereupon that Act does not apply in respect of the described agreement, arrangement or course of action.

Duration of exemption

(4) An exemption order under this section shall be expressed to be for a period not in excess of twenty-four months, but it may be renewed by the Board for a further like period on an application therefor made and approved in like manner as in the case of the application for the exemption order in the first instance.

Withdrawal of order

(5) When the Board is of the opinion that an exemption order is no longer required in the public interest, it may, by notice to the persons to whom the order applies and to the Minister of Industry, withdraw the exemption order as of a day specified in the notice and after that specified day the exemption order ceases to have any effect.

R.S., 1985, c. E-9, s. 33; R.S., 1985, c. 19 (2nd Supp.), s. 49; 1990, c. 2, s. 7; 1992, c. 1, s. 145(F); 1993, c. 34, s. 65(F); 1995, c. 1, s. 62.


Environmental Considerations

Sulphur discharge

34. (1) Where the Board considers it necessary, in order to conserve the available supplies of a controlled product, to make regulations providing for a relaxation of any provisions of law regulating or prohibiting the discharge of sulphur compounds into the atmosphere from fuel combustion at stationary sources, the Board may consult with such persons, organizations and authorities as, in the opinion of the Board, are in a position to assist it in formulating and making regulations that would permit conservation of the controlled product with the least detrimental effect on the public health and the environment.

Consultation required

(2) Before making a regulation under this section, the Board shall consult with both the Minister of the Environment and the Minister of Health regarding the relaxation of any provision of the law controlling the discharge of sulphur compounds into the atmosphere.

Special permits required

(3) A relaxation of any provision of the law regulating or prohibiting the discharge of sulphur compounds into the atmosphere pursuant to any regulations under this section may be authorized only by permits issued by the Board for periods of not longer than six months

(a) in respect of specific stationary sources, or

(b) in respect of a defined geographic area,

and the nature and extent of the relaxation of any provision of the law authorized by the permit shall be set out in the permit.

Contents of regulations

(4) Regulations made under this section shall

(a) provide for a means of giving public notice of the issue of a permit under the regulations, which public notice shall be required to be given within ten days of its being issued and shall set out the contents of the permit;

(b) provide for a means whereby any provincial or municipal authorities or natural persons, or any of them, may demand and obtain a public hearing before a hearing officer to be appointed by the Minister of the Environment on the matter of any permit issued pursuant to the regulations, which hearing shall be required to be held expeditiously and a report thereon made to the Minister of the Environment and the Minister of Health forthwith on the completion of the hearing;

(c) provide that the report of a hearing officer on the matter of a permit issued pursuant to the regulations is to be made public and the manner in which that report is to be made public; and

(d) provide that a permit issued pursuant to the regulations may be revoked or altered by the Minister of the Environment or the Minister of Health if, in the opinion of the Minister, the report of a public hearing warrants that action.

Tabling

(5) Where a public hearing has been held on the matter of a permit issued pursuant to the regulations made under this section, a copy of that permit and the report of the hearing officer thereon shall be laid before Parliament forthwith on the receipt by the Minister of the Environment of the report of the hearing officer or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that Parliament is sitting.

Conflict

(6) Where there is a conflict between any regulation made under this Act and any provisions of any other law regulating or prohibiting the discharge of sulphur compounds into the atmosphere, the regulation made under this Act prevails.

class="HistR.S., 1985, c. E-9, s. 34; 1996, c. 8, ss. 18, 32.


Transportation

Railway transportation

35. (1) For the purpose of ensuring adequate supplies of a controlled product in the various parts of Canada, the Board may direct the Canadian Transportation Agency to order railway cars, motive power or other railway equipment to be allotted, distributed, used or moved as required by the Board and to order railway lines and railway facilities to be used and shared as required by the Board, and the Agency is hereby vested with all such powers, in addition to its powers under the Canada Transportation Act as are necessary to enable the Agency to carry out or enforce the direction of the Board.

Consultation with Canadian Transportation Agency

(2) Before issuing a direction under this section, the Board shall consult with the Canadian Transportation Agency, and may consult with such other authorities as it considers necessary to assist it in determining the effect of its direction on the movement of other traffic by rail and satisfying itself that on balance the greater public interest would be served by its direction to the Agency.

Conflict of statutory powers

(3) Section 4 of the Canada Transportation Act does not apply in respect of any conflict between a regulation made under this Act and a regulation made under that Act, and in the event of any such conflict, the regulation made under this Act prevails.

R.S., 1985, c. E-9, s. 35; R.S., 1985, c. 28 (3rd Supp.), ss. 283, 359; 1996, c. 10, s. 216.

Definition of "pipeline company"

36. (1) In this section, “pipeline company” means a company operating a pipeline in respect of which there is in force a certificate of public convenience and necessity, or other authority to operate a pipeline, issued under the National Energy Board Act.

Pipeline facilities

(2) For the purpose of ensuring adequate supplies of a controlled product in the various parts of Canada, the Energy Supplies Allocation Board may direct the National Energy Board

(a) to require a pipeline company operating a pipeline for the transmission of gas or oil or both to provide such additional facilities for the receiving, transmission, delivering and storing of gas or oil as the Energy Supplies Allocation Board deems necessary for the more effective carrying out of a mandatory allocation program, whether or not to do so would impose an undue burden on the pipeline company;

(b) to require a pipeline company to divert any gas or oil carried by it to any person engaged in or legally authorized to engage in the local distribution of gas or oil to the public whether or not that diversion of gas or oil impairs the pipeline company’s ability to render adequate service to its existing customers; and

(c) to require a pipeline company to construct branch lines to such communities or large volume users adjacent to its pipeline as the Energy Supplies Allocation Board considers necessary in the public interest, whether or not to do so would impose an undue burden on the pipeline company.

When pipeline not carrying controlled product

(3) A direction under this section may be made in respect of a pipeline company and its facilities whether or not the commodity carried by its pipeline is a controlled product at the time the direction is made.

Consultation

(4) Before issuing a direction under this section, the Energy Supplies Allocation Board shall consult with the National Energy Board and may consult with such other authorities as it considers necessary to assist it in formulating a direction to the National Energy Board that would permit conservation of the available supplies of any controlled product with the least burden on the pipeline company or the least impairment of its services to its customers, as the case may be.

Additional powers granted

(5) The National Energy Board is hereby vested with all such powers, in addition to its powers under the National Energy Board Act, as are necessary to enable it to carry out or enforce a direction of the Energy Supplies Allocation Board.

Saving

(6) It is not a contravention of section 67 of the National Energy Board Act if a discrimination in tolls, services or facilities against any person arises solely as a consequence of compliance with any order of the National Energy Board that is made pursuant to a direction issued under this section, and section 68 of that Act is not applicable in respect of that discrimination.

1978-79, c. 17, s. 26.

Water transportation

37. (1) For the purpose of ensuring adequate supplies of a controlled product in the various parts of Canada, the Board may direct the Canadian Transportation Agency

(a) to order any Canadian ship to be used or sailed as required by the Board, and

(b) to authorize a ship that is not a Canadian ship to carry any controlled product between points in Canada when no Canadian ship is available to carry the controlled product,

and the Agency is hereby vested with all such powers, in addition to its powers under the Canada Transportation Act as are necessary to enable the Agency to carry out or enforce the direction of the Board.

Consultation with Canadian Transportation Agency

(2) Before giving a direction under this section, the Board shall consult with the Canadian Transportation Agency and may consult with such other authorities as it considers necessary in order to satisfy itself that a proposed direction would have the least detrimental effect on the carriage of goods by water in Canada consistent with the need to carry out the purposes of this Act.

Exemption duties and licences

(3) The Board may, by order, exempt any non-Canadian ship engaged in Canadian coasting trade pursuant to an order of the Canadian Transportation Agency under paragraph (1)(b) from

(a) the payment of any customs duty and excise tax that would be payable in respect of that ship and its appurtenances and spares by virtue of its engagement in Canadian coasting trade; and

(b) the requirement for a licence under the Coasting Trade Act.

R.S., 1985, c. E-9, s. 37; R.S., 1985, c. 28 (3rd Supp.), ss. 284, 359; 1992, c. 31, s. 28; 1996, c. 10, s. 217.

Motor transport

38. In respect of an extra-provincial truck undertaking within the meaning of theMotor Vehicle Transport Act, the Board may authorize the operation of the undertaking for the transport of a controlled product notwithstanding any provision of that Act or theCanada Transportation Act or any regulations made pursuant to either of those Acts.

R.S., 1985, c. E-9, s. 38; R.S., 1985, c. 28 (3rd Supp.), s. 285, c. 29 (3rd Supp.), s. 24; 1996, c. 10, s. 218; 2001, c. 13, s. 10.

Previous VersionApproval required

39. (1) Where a direction under section 35, 36 or 37 would require the construction of works pursuant to an order of the Canadian Transportation Agency or the National Energy Board under any of those sections, the direction shall not be made by the Board unless it is satisfied that sufficient financing is available for the construction of the work to be directed and the Governor in Council has approved the making of the direction.

Idem

(2) Where compliance with any regulation under this Act would require the construction of any work, the regulation shall not be enforced unless the Board is satisfied that the costs involved are not excessive in all the circumstances of the case, that sufficient financing is available for the construction of the work and that the Minister of Natural Resources has been informed of the costs involved and approves the enforcement of the regulation.

R.S., 1985, c. E-9, s. 39; R.S., 1985, c. 28 (3rd Supp.), s. 359; 1994, c. 41, s. 37; 1996, c. 10, s. 219.

Enforcement of orders

40. Without limiting the application of sections 41 and 42 of this Act, an order made by the Canadian Transportation Agency or the National Energy Board pursuant to any directions issued by the Energy Supplies Allocation Board under sections 35 to 37 of this Act may be enforced in the same manner as any order made by the Canadian Transportation Agency or the National Energy Board under the Canada Transportation Act or the National Energy Board Act, as the case may be.

R.S., 1985, c. E-9, s. 40; R.S., 1985, c. 28 (3rd Supp.), s. 286; 1996, c. 10, s. 220.


Confidentiality of Information

Information privileged

40.1 (1) Subject to subsection (2), all information and documentation obtained by the Board under or in connection with this Act is privileged and shall not knowingly be or be permitted to be communicated, disclosed or made available without the written consent of the person from whom they were obtained.

Exceptions

(2) Information and documentation obtained by the Board under or in connection with this Act may be communicated, disclosed or made available for the purposes of the administration or enforcement of this Act, legal proceedings related thereto or criminal proceedings under this or any other Act of Parliament.

Evidentiary privilege

(3) Notwithstanding any other Act or law, no person who obtains any information or documentation under or in connection with this Act shall be required, in connection with any legal proceedings, other than proceedings referred to in subsection (2), to give evidence relating to any information or documentation that is privileged under this Act or to produce any statement, document, writing or portion thereof containing any such information or documentation.

1990, c. 2, s. 8.


Enforcement

Offence

41. (1) A person who wilfully contravenes a regulation under this Act is guilty of an offence and liable

(a) on summary conviction to a fine not exceeding one thousand dollars; or

(b) on conviction on indictment to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding two years or to both.

Offence

(2) A person who wilfully contravenes an order of the Canadian Transportation Agency or the National Energy Board made pursuant to a direction of the Energy Supplies Allocation Board under this Act is guilty of an offence and liable

(a) on summary conviction to a fine not exceeding ten thousand dollars; or

(b) on conviction on indictment to a fine not exceeding twenty thousand dollars or to imprisonment for a term not exceeding two years or to both.

Continuing offence

(3) Where an offence under this Act is committed on more than one day or is continued for more than one day, it shall be deemed to be a separate offence for each day on which it is committed or continued.

Limitation period

(4) Any proceedings by way of summary conviction in respect of an offence under this Act may be instituted at any time within but not later than one year after the time when the subject-matter of the proceedings arose.

R.S., 1985, c. E-9, s. 41; R.S., 1985, c. 28 (3rd Supp.), s. 359; 1996, c. 10, s. 221.

Injunctions and orders

42. (1) When it appears to the Board that a person or an organization has engaged in, is engaged in or is about to engage in any acts or practices in contravention of a provision of a regulation made under this Act or in contravention of a decision or an order made by the Canadian Transportation Agency or the National Energy Board under a direction given under this Act, the Board may request the Attorney General of Canada to bring an action in a superior court to enjoin those acts or practices.

Power of court

(2) The court before which an action is brought under this section may

(a) grant a temporary restraining order or an interlocutory injunction;

(b) order any person to comply with a regulation under this Act or any decision or order of the Canadian Transportation Agency or the National Energy Board that is made pursuant to a direction given under this Act; and

(c) make such other order as may be deemed necessary to effect compliance with a regulation under this Act.

R.S., 1985, c. E-9, s. 42; R.S., 1985, c. 28 (3rd Supp.), s. 359; 1996, c. 10, s. 222; 2002, c. 8, s. 136.

Previous Version

Part Iv. Other Provisions

Binding on Her Majesty

43. This Act is binding on Her Majesty.

1978-79, c. 17, s. 33.

Termination of programs

44. (1) Subject to this section, a mandatory allocation program terminates with the end of the eleventh month following the month in which the program came into force.

Earlier termination

(2) A mandatory allocation program may be terminated by order of the Governor in Council on a day earlier than that prescribed under subsection (1).

Extension of program periods

(3) A mandatory allocation program may be extended beyond its termination date, from time to time, by an order made by the Governor in Council for that purpose but that order shall not extend a mandatory allocation program for any one period in excess of twelve months.

(4) and (5) (Repealed, R.S., 1985, c. 22 (4th Supp.), s. 72)

R.S., 1985, c. E-9, s. 44; R.S., 1985, c. 22 (4th Supp.), s. 72.

Consultation

45. Before the Governor in Council makes an order under section 15, 19, 20, 22, 29 or 44, the lieutenant governor in council of each province shall be consulted with respect to the proposed order to the extent that, in the opinion of the Governor in Council, it is practicable to do so in the circumstances.

R.S., 1985, c. 22 (4th Supp.), s. 73.

Tabling in Parliament when sitting

46. (1) Subject to subsection (4), a motion for confirmation of an order made under section 15, signed by a minister of the Crown, together with an explanation of the reasons for making the order and a report on any consultation with the lieutenant governors in council of the provinces with respect to the order, shall be laid before each House of Parliament within seven sitting days after the order is made.

Summoning Parliament or House

(2) If an order is made under section 15 during a prorogation of Parliament or when either House of Parliament stands adjourned, Parliament or that House, as the case may be, shall be summoned forthwith to sit within seven days after the order is made.

Summoning Parliament

(3) If an order is made under section 15 at a time when the House of Commons is dissolved, Parliament shall be summoned to sit at the earliest opportunity after the order is made.

Tabling in Parliament after summoned

(4) Where Parliament or a House of Parliament is summoned to sit in accordance with subsection (2) or (3), the motion, explanation and report described in subsection (1) shall be laid before each House of Parliament or that House of Parliament, as the case may be, on the first sitting day after Parliament or that House is summoned.

Consideration

(5) Where a motion is laid before a House of Parliament as provided in subsection (1) or (4), that House shall, on the sitting day next following the sitting day on which the motion was so laid, take up and consider the motion.

Vote

(6) A motion taken up and considered in accordance with subsection (5) shall be debated without interruption and, at such time as the House is ready for the question, the Speaker shall forthwith, without further debate or amendment, put every question necessary for the disposition of the motion.

Revocation of order

(7) If a motion for confirmation of an order is negatived by either House of Parliament, the order is revoked effective on the day of the negative vote and no further action under this section need be taken in the other House with respect to the motion.

R.S., 1985, c. 22 (4th Supp.), s. 73.

Motion for revocation

47. (1) Where a motion, for the consideration of the Senate or the House of Commons, to the effect that an order made under section 15 be revoked, signed by not less than ten members of the Senate or twenty members of the House of Commons, as the case may be, is filed with the Speaker thereof, that House of Parliament shall take up and consider the motion within three sitting days after it is filed.

Vote

(2) A motion taken up and considered in accordance with subsection (1) shall be debated without interruption for not more than ten hours and, on the expiration of the tenth hour or at such earlier time as the House is ready for the question, the Speaker shall forthwith, without further debate or amendment, put every question necessary for the disposition of the motion.

Revocation of order

(3) If a motion debated in accordance with subsection (2) is adopted by the House, the order is revoked effective on the day specified in the motion, which day may not be earlier than the day of the vote adopting the motion.

R.S., 1985, c. 22 (4th Supp.), s. 73.

Tabling in Parliament

48. (1) A motion for confirmation of an order made under section 19, 20, 22, 29 or 44, signed by a minister of the Crown, together with an explanation of the reasons for making the order and a report on any consultation with the lieutenant governors in council of the provinces with respect to the order, shall be laid before each House of Parliament within seven sitting days after the order is made.

Consideration

(2) Where a motion is laid before a House of Parliament as provided in subsection (1), that House shall, on the sitting day next following the sitting day on which the motion was so laid, take up and consider the motion.

Vote

(3) A motion taken up and considered in accordance with subsection (2) shall be debated without interruption and, at such time as the House is ready for the question, the Speaker shall forthwith, without further debate or amendment, put every question necessary for the disposition of the motion.

Revocation of order

(4) If a motion for confirmation of an order is negatived by either House of Parliament, the order is revoked effective on the day of the negative vote and no further action under this section need be taken in the other House with respect to the motion.

R.S., 1985, c. 22 (4th Supp.), s. 73.


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