Bill C-5

2nd Session, 39th Parliament,

56 Elizabeth II, 2007

house of commons of canada

BILL C-5

An Act respecting civil liability and compensation for damage in case of a nuclear incident

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Nuclear Liability and Compensation Act.

INTERPRETATION

2. The following definitions apply in this Act.

“approved insurer” means an insurer or association of insurers that is designated under section 25 as an approved insurer.

“nuclear fuel” means material that is capable of a self-sustaining nuclear fission chain reaction.

“nuclear incident” means an occurrence or a series of occurrences having the same origin that causes damage for which an operator is liable under this Act.

“nuclear installation” means any site or means of transport that is designated under section 6 as a nuclear installation.

“nuclear material” means

(a) nuclear fuel, other than natural uranium or depleted uranium, that can produce energy by a self-sustaining nuclear fission chain reaction outside a nuclear reactor, either alone or in combination with another material; and

(b) either of the following materials, if it is combined with, mixed with or in the presence of nuclear fuel, namely,

(i) radioactive material that is produced in the production or use of the nuclear fuel, or

(ii) material that is made radioactive by exposure to radiation consequential on or incidental to the production or use of the nuclear fuel.

“nuclear reactor” means a structure containing nuclear fuel in such an arrangement that a self-sustaining nuclear fission chain reaction can occur in the structure without an additional source of neutrons.

“operator” means the holder of a licence issued under the Nuclear Safety and Control Act and designated under section 6 as the operator of a nuclear installation.

“Tribunal” means a nuclear claims tribunal established under subsection 36(1).

DESIGNATION OF MINISTER

3. The Governor in Council may, by order, designate a minister of the Crown to be “the Minister” referred to in this Act.

APPLICATION

4. (1) This Act does not apply to an incident caused in any of the circumstances referred to in any of paragraphs 8(1)(a) to (d) and that results from an act of war, hostilities, civil war or insurrection, other than terrorist activity as defined in subsection 83.01(1) of the Criminal Code.

(2) This Act does not apply to damage to the nuclear installation of an operator who is responsible for that damage or to any property at the installation that is used in connection with the installation.

HER MAJESTY

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

DESIGNATION OF NUCLEAR INSTALLATIONS

6. (1) The Governor in Council may, on the recommendation of the Minister after consultation with the Canadian Nuclear Safety Commission, by regulation, designate as a nuclear installation any site that contains a facility or facilities authorized by licence issued under the Nuclear Safety and Control Act to contain nuclear material.

(2) The regulation must describe the site, list the facilities on the site that are authorized to contain nuclear material and designate as the operator of the nuclear installation the holder of a licence described in subsection (1).

(3) The regulation can be made before a licence has been issued but it may not come into force before the day on which the licence is issued.

(4) The Governor in Council may, on the recommendation of the Minister after consultation with the Canadian Nuclear Safety Commission, by regulation, also designate as a nuclear installation any means of transport that is equipped with a nuclear reactor and designate as the operator of the nuclear installation the holder of a licence issued under the Nuclear Safety and Control Act respecting that means of transport.

LIABILITY FOR NUCLEAR INCIDENTS

Liability of Operator

7. An operator is not liable for damage caused by a nuclear incident except as provided under this Act.

8. (1) An operator — and no person other than an operator — is liable for damage caused, within Canada or in the exclusive economic zone of Canada, by

(a) ionizing radiation emitted from any source of radiation within, or released from, the operator’s nuclear installation;

(b) ionizing radiation emitted from nuclear or radioactive material being transported from the operator’s nuclear installation until it is placed in a facility licensed under the Nuclear Safety and Control Act;

(c) ionizing radiation emitted from nuclear material that is in the process of being transported to the operator’s installation from outside Canada; or

(d) a combination of the radioactive properties and toxic, explosive or other hazardous properties of a source referred to in paragraph (a) or material referred to in paragraph (b) or (c).

(2) An operator is also liable for any damage caused within Canada or the exclusive economic zone of Canada if the damage is caused by a preventive measure taken under section 18 in relation to that operator’s nuclear installation or in relation to any transportation for which the operator is liable.

(3) If provided for in regulations made under subsection 64(2) to implement an agreement between Canada and a reciprocating country, an operator is liable for damage that occurs in that reciprocating country or its exclusive economic zone and that results from the production, processing, transport, storage, use or disposition of the nuclear material for which the operator is responsible.

9. (1) The liability of an operator for damage caused by a nuclear incident is absolute.

(2) For the purposes of subsection (1), no proof of tort or of fault within the meaning of the Civil Code of Québec is required.

10. If more than one operator is liable for the damage caused by a nuclear incident, each is jointly and severally, or solidarily, liable.

11. An operator is not liable for damage suffered by an individual if the nuclear incident that caused the damage was wholly or partly caused by an act or omission that the individual committed

(a) with intent to cause injury or damage; or

(b) recklessly and with knowledge that injury or damage would probably result.

12. No operator has a right of recourse against any person, other than an individual described in section 11, in respect of damage caused by a nuclear incident.

Compensable Damage

13. Bodily injury and damage to property caused by a nuclear incident are compensable.

14. (1) Psychological trauma suffered by a person may be compensated if it results from

(a) bodily injury or damage to property of that person that was caused by a nuclear incident; or

(b) measures referred to in section 18 that were taken by that person.

(2) Psychological trauma suffered by anyone in a close personal relationship with a person who suffered bodily injury caused by a nuclear incident may also be compensated.

15. Economic loss incurred by a person as a result of their bodily injury or damage to their property caused by a nuclear incident, or psychological trauma resulting from that bodily injury or property damage, is compensable.

16. (1) The costs incurred by a person who loses the use of property as a result of a nuclear incident and the resulting wage loss by that person’s employees may be compensated.

(2) If a nuclear incident occurs at a nuclear installation that generates electricity, the costs resulting from a failure of the installation to provide electricity are not compensable under subsection (1).

17. Reasonable costs of remedial measures taken to repair, reduce or mitigate environmental damage caused by a nuclear incident may be compensated if the measures were ordered by an authority acting under federal or provincial legislation relating to environmental protection.

18. If an authority — acting under a nuclear emergency scheme established under federal or provincial legislation — has recommended that measures be taken in a specified area to prevent damage, the following costs and losses of persons who live in, carry on business in, work in or are present in the area may be compensated:

(a) the reasonable costs of the measures; and

(b) the costs and economic loss — including lost wages — arising from the loss of use of property as a result of the measures.

19. Any damage resulting from a nuclear incident and any concomitant non-nuclear incident is deemed to be damage caused by the nuclear incident to the extent that it cannot be identified as having been caused only by the non-nuclear incident.

20. If a nuclear incident occurs during the transportation of nuclear or radioactive material to or from a nuclear installation, or any storage incidental to such transport, damage to the means of transport or the structure or site where the nuclear or radioactive material is stored may not be compensated under this Act.

Financial Provisions

21. (1) The liability of an operator under this Act for damage resulting from a nuclear incident is limited to $650 million.

(2) The Governor in Council may, by regulation, amend subsection (1) to increase the amount.

(3) Subsection (1) does not relieve an operator from payment of the costs of administering claims, court costs or interest on compensation.

22. (1) The Minister shall review the limit of liability, referred to in subsection 21(1), on a regular basis, and at least once every five years.

(2) In carrying out the review, the Minister shall have regard to

(a) changes in the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act;

(b) financial security requirements under international agreements respecting nuclear liability; and

(c) any other considerations that the Minister considers relevant.

23. (1) An operator shall maintain, for each of the operator’s nuclear installations that contains nuclear material, financial security in the amount referred to in subsection 21(1) to compensate persons who suffer damage caused by a nuclear incident.

(2) The financial security may not be used by an operator to pay their costs of administering claims, court costs, legal fees or interest on compensation.

(3) This section does not apply to an operator that is a department listed in Schedule I to the Financial Administration Act.

24. (1) The financial security is to be in the form of insurance with an approved insurer, containing only the terms and conditions set out in a standard insurance policy approved by the Minister.

(2) The Minister may enter into an agreement with the operator that authorizes that a portion of the financial security be alternate financial security.

(3) The portion of the alternate financial security that may be authorized may not, unless another percentage has been fixed by regulation, exceed 50 per cent of the difference between the amount set out in subsection 21(1) and any amount of reinsurance applicable to the nuclear installation that may be prescribed by regulation.

(4) The agreement must identify the financial instrument being used as alternate financial security, specify its dollar value, and set out any conditions that the Minister considers appropriate, including requirements that the operator submit reports, allow the Minister to undertake financial audits in respect of the security or pay a fee for the authorization of the security or for the audits.

(5) The Minister may revoke the agreement.

25. The Minister may designate as an approved insurer any insurer or association of insurers that, in the opinion of the Minister, is qualified to fulfill the obligations of an approved insurer under this Act.

26. (1) The Minister may enter into an agreement with an approved insurer under which Her Majesty in right of Canada reinsures some or all of the risk assumed by the insurer under insurance referred to in subsection 24(1).

(2) The risks that may be reinsured are those that, in the Minister’s opinion, would not be assumed by an approved insurer without the agreement or those that are prescribed by regulation.

(3) The reinsurance agreement may provide for the payment of premiums to Her Majesty in right of Canada.

(4) The Minister shall cause a copy of each reinsurance agreement entered into under this section to be laid before each House of Parliament on any of the first 30 days on which that House is sitting after the agreement is entered into.

27. (1) There is hereby continued in the accounts of Canada a special account known as the Nuclear Liability Reinsurance Account

(a) to which are to be credited all amounts received by Her Majesty in right of Canada as premiums under a reinsurance agreement; and

(b) to which are to be charged all amounts payable by Her Majesty in right of Canada under a reinsurance agreement.

(2) If the amount standing to the credit of the Nuclear Liability Reinsurance Account is insufficient for the payment of amounts required under the terms of a reinsurance agreement, an amount sufficient to meet the deficit is to be paid from the Consolidated Revenue Fund, and credited to the Nuclear Liability Reinsurance Account.

Preservation of Certain Rights and Obligations

28. Nothing in this Act is to be construed as limiting or restricting any right or obligation arising under

(a) any contract of insurance;

(b) any scheme or system of health insurance, employees’ compensation or occupational disease compensation; or

(c) any survivor or disability provision of a pension plan.

Judicial Proceedings

29. (1) An action involving damage caused by a nuclear incident is to be brought in the court that has jurisdiction in the place where the incident occurs.

(2) The Federal Court of Canada has ju- risdiction if the nuclear incident occurs in more than one province or outside any province.

30. (1) An action or claim must be brought

(a) in the case of an action or a claim for loss of life,

(i) within three years after the day on which the person died, or

(ii) where conclusive evidence of the death of the person is not available, within three years after the day on which an order presuming the person to be dead is made by a court having jurisdiction; and

(b) in any other case, within three years after the earliest day on which the person bringing the action or making the claim had knowledge or ought reasonably to have had knowledge of the damage.

(2) No action or claim may be brought

(a) in relation to bodily injury, after 30 years from the day on which occurred the nuclear incident to which the action or claim relates; and

(b) in any other case, after 10 years from the day on which occurred the nuclear incident to which the action or claim relates.

NUCLEAR CLAIMS TRIBUNAL

Declaration of the Governor in Council

31. (1) The Governor in Council may declare that the claims in respect of a nuclear incident are to be dealt with by a Tribunal, if the Governor in Council believes that it is in the public interest to do so, having regard to the extent and the estimated cost of the damage, and the advantages of having the claims dealt with by an administrative tribunal.

(2) The declaration is not a statutory instrument for the purposes of the Statutory Instruments Act but it must be published, without delay, in Part II of the Canada Gazette.

32. (1) Section 29 ceases to apply for a nuclear incident on the day on which a declaration is made under section 31, and any proceedings brought or taken before the declaration was made are discontinued.

(2) Those claims that could have been made prior to the declaration may, after the declaration, only be brought before a Tribunal.

Report to Parliament

33. The Minister shall, without delay after a declaration is made under section 31, cause a report estimating the cost of the damage arising from a nuclear incident to be laid before each House of Parliament.

Interim Financial Assistance

34. (1) After a declaration is made under section 31 and before the notice is published under subsection 37(2), the Minister may pay interim financial assistance to persons who, in the Minister’s opinion, have suffered damage as a result of the nuclear incident to which the declaration relates. The Minister shall inform the Tribunal of the names of those persons and the amounts paid.

(2) The maximum amount paid under subsection (1) may not exceed 20 per cent of the difference between

(a) the amount set out in subsection 21(1), and

(b) the total amounts paid by the operator, before the declaration was made under section 31, to compensate persons for damage arising from the nuclear incident.

35. The Minister may enter into an agreement with any person, association of insurers or province for the carrying out of the Minister’s duty or function by that person, association of insurers or province in relation to the payment of interim financial assistance.

Establishment of a Nuclear Claims Tribunal

36. (1) The Governor in Council shall, as soon as possible after a declaration is made under section 31, establish a nuclear claims tribunal and designate the location of its head office in Canada.

(2) The purpose of the Tribunal is to examine and adjudicate claims for damage arising from the nuclear incident as expeditiously as the circumstances and considerations of fairness permit.

37. (1) The Tribunal shall notify the public, in a manner that it considers appropriate, of the details of its purpose and how to obtain information on bringing a claim.

(2) A notice of the Tribunal’s purpose and how to obtain information on bringing a claim must also be published, without delay, in the Canada Gazette.

38. (1) The Governor in Council shall appoint a minimum of five persons to the Tribunal, one of whom is to be designated as the Chairperson.

(2) A majority of the members of the Tribunal are to be appointed from among persons who are sitting or retired judges of a superior court or members of at least 10 years’ standing at the bar of a province or the Chambre des notaires du Québec.

(3) Members are to be paid the remuneration and expenses fixed by the Governor in Council.

39. Each member of the Tribunal is to be appointed to hold office during good behaviour for a term that the Governor in Council considers appropriate and may be removed for cause.

40. No civil proceedings lie against any member of the Tribunal for anything done or said in good faith in the exercise or purported exercise of a power or in the performance or purported performance of a duty or function of the Tribunal.

41. The Tribunal may employ the staff it considers necessary for the proper conduct of its activities, prescribe their duties and, subject to any regulations, their terms and conditions of employment and, with the approval of the Treasury Board, fix and pay their remuneration.

42. The Tribunal may engage on a temporary basis the services of counsel and other persons having technical or specialized knowledge to assist the Tribunal in its work, establish the terms and conditions of their employment and, with the approval of the Treasury Board, fix and pay their remuneration and expenses.

43. In the event of an inconsistency between a provision of the Judges Act and any provision of this Act that is applicable to a sitting or retired judge, the Judges Act prevails to the extent of the inconsistency.

Powers and Duties of a Tribunal

44. The Tribunal shall hold its hearings in Canada at the times and locations that it considers appropriate.

45. (1) The 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 necessary or proper for the due exercise of its jurisdiction, all of the powers, rights and privileges that are vested in a superior court.

(2) The Tribunal is not, in the hearing of any claim, bound by the legal rules of evidence but it may not receive as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.

(3) The Tribunal may issue commissions to take evidence outside Canada and may make orders for that purpose and for the return and use of the evidence so obtained.

46. The Tribunal may require persons claiming compensation to undergo physical or other examinations that are reasonably necessary to enable the Tribunal to determine their claims.

47. The Tribunal may refuse to hear any claim referred to it that it considers to be frivolous or vexatious.

48. The Tribunal shall, at the request of the Minister, submit to the Minister a report on its activities. 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 Minister receives it.

49. The 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 bringing claims;

(b) the form and manner in which evidence may be submitted;

(c) a quorum;

(d) procedures that claims officers are to follow in dealing with claims;

(e) fees and travel expenses to be paid to witnesses;

(f) the allowance of costs; and

(g) procedures respecting appeals and re-hearings.

Claims

50. (1) The Chairperson may establish pan- els of the Tribunal consisting of one or more members to hear claims.

(2) The Tribunal may, in order to process claims expeditiously, establish classes of claims that may be determined by a claims officer without an oral hearing and designate as a claims officer anyone it considers qualified.

(3) A panel or a claims officer shall exercise the powers and perform the duties and functions of the Tribunal with respect to claims before that panel or claims officer.

51. The Chairperson shall assign a claim to a panel or a claims officer and shall notify the claimant, the operator and the Minister.

52. Panel hearings are to be held in public. However, a panel may hold all or part of a hearing in private if it is of the opinion that a person’s privacy interest outweighs the principle that hearings be open to the public.

53. (1) The Tribunal may award interim compensation in respect of a claim heard by it before making a decision with respect to the entirety of the claim.

(2) The Tribunal shall inform the Minister of the amount of awarded interim compensation to be paid and the Minister shall pay that amount.

54. (1) The Tribunal shall notify the claim- ant and the operator of its decision.

(2) If the Tribunal decides to award compensation in respect of a claim, the notification shall also be sent to the Minister and indicate the amount of

(a) the award;

(b) any reductions prescribed by regulations concerning compensation; and

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

Re-hearing and Appeal

55. A claimant or an operator who is dissatisfied with the decision of a claims officer may, within 30 days after receiving notification of the decision, apply to the Tribunal for a re-hearing by a panel.

56. (1) If a claim has been heard by a panel that consists of less than three members, the claimant or operator may, within 30 days after receiving notification of the decision, apply in writing to the Chairperson for leave to appeal.

(2) The appeal is to be heard and decided by a panel consisting of three other members.

(3) The appeal is to be heard on the basis of the record of the panel whose decision is appealed and on the submissions of interested parties. The panel hearing the appeal may, in exceptional circumstances, if in its opinion it is essential in the interests of justice to do so, admit additional evidence or testimony.

57. Subject to sections 55 and 56, every decision of the Tribunal is final and conclusive and may not 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.

Financial Provisions

58. At the end of the period to make an appeal or apply for a re-hearing, if no appeal has been made, the Minister shall pay to the claimant the difference between the amount of the award and the total of the amounts referred to in paragraphs 54(2)(b) and (c).

59. Any overpayment is a debt due to Her Majesty in right of Canada and may be recovered in accordance with section 155 of the Financial Administration Act.

60. (1) All payments made by the Minister are to be paid out of the Nuclear Liability Reinsurance Account.

(2) If the amount standing to the credit of the Nuclear Liability Reinsurance Account is insufficient for the payment of amounts required, an amount sufficient to meet the deficit is to be paid from the Consolidated Revenue Fund, and credited to the Nuclear Liability Reinsurance Account.

61. (1) The operator liable for damages caused by a nuclear incident shall pay to Her Majesty in right of Canada an amount equal to the lesser of

(a) the amount set out in subsection 21(1) less the total amounts paid by the operator to compensate persons for damage arising from the nuclear incident before the declaration under section 31 was made, and

(b) the total of all amounts paid by the Minister under this Act.

(2) If the operator fails to pay any amount due, it shall be paid to Her Majesty in right of Canada by

(a) the approved insurer, for financial secu- rity that is in the form of insurance; or

(b) the issuer of the financial instrument, for alternate financial security.

(3) The operator, the approved insurer or the issuer of the financial instrument, as the case may be, shall pay to Her Majesty in right of Canada, on demand of the Minister, any amount specified in the demand.

(4) The total amount demanded by the Minister under subsection (3) in respect of any year may not exceed the total amount paid by the Minister during that year.

(5) An amount not paid as required by a demand under subsection (3) is a debt due to Her Majesty in right of Canada and may be recovered in accordance with section 155 of the Financial Administration Act.

(6) Any amount received by Her Majesty in right of Canada under this section is to be credited to the Nuclear Liability Reinsurance Account.

62. (1) The Tribunal shall not award, in respect of a nuclear incident, an amount that exceeds the difference between the amount set out in subsection 21(1) and the total of all amounts paid by the operator to compensate persons for damage arising from the nuclear incident before the declaration was made under section 31.

(2) If additional funds are appropriated by Parliament to provide compensation for damage arising from the nuclear incident, the Tribunal may award the additional funds for the damage.

63. (1) If a regulation made under paragraph 68(b) respecting pro rata payments or establishing maximum limits is amended, the Tribunal shall inform the Minister of any change to applicable reductions that is to the advantage of any claimant who was not fully compensated in accordance with the previous regulation.

(2) The Minister shall pay to the claimant the difference between the amount already paid and the amount that would be paid under the amended regulation.

(3) If a regulation made under paragraph 68(c) is amended, the Tribunal may consider any new claim for which compensation could not be awarded in accordance with the previous regulation.

RECIPROCATING AGREEMENTS

64. (1) If the Governor in Council is of the opinion that satisfactory arrangements exist in any country for compensation in that country and in Canada for damage resulting from the production, processing, transport, storage, use or disposition of nuclear material, the Governor in Council may declare that country to be a reciprocating country for the purposes of this Act.

(2) The Governor in Council may, with respect to a reciprocating country, make any regulations that the Governor in Council considers necessary to implement any agreement between Canada and the reciprocating country relating to damage resulting from the production, processing, transport, storage, use or disposition of nuclear material.

(3) Except as may be provided in regulations made under subsection (2), no court in Canada and no nuclear claims tribunal has jurisdiction to entertain any action or claim or grant any relief or remedy in respect of the damage referred to in subsection (1).

OFFENCE AND PUNISHMENT

65. (1) An operator who contravenes subsection 23(1) or who does not hold financial security in the form and manner required by section 24 commits an offence and is liable on summary conviction to a fine not exceeding $300,000 for each day on which the offence is committed or continued.

(2) No operator is to be found guilty of the offence if it is established that the operator exercised due diligence to prevent the commission of the offence.

REGULATIONS

66. The Governor in Council may make regulations

(a) fixing a percentage for the purpose of subsection 24(3);

(b) prescribing classes of nuclear installations;

(c) fixing an amount of reinsurance for any nuclear installation or for any prescribed class of nuclear installation;

(d) fixing a period during which any nuclear installation or prescribed class of nuclear installation may be reinsured;

(e) prescribing any matter or thing that by this Act is to be or may be prescribed; and

(f) generally to carry out the purposes and provisions of this Act.

67. The Governor in Council may make regulations respecting the Tribunal, including regulations

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

(b) respecting conflict of interest;

(c) prescribing the powers and duties of the Chairperson;

(d) respecting the absence or incapacity of the Chairperson or a member; and

(e) respecting the hiring and terms and conditions of employment of claims officers and other employees of the Tribunal.

68. The Governor in Council may make regulations concerning the compensation that may be awarded by the Tribunal, including regulations

(a) establishing priorities for classes of damage;

(b) reducing awards on a pro rata basis for specified classes of damage and fixing a maximum award within a specified class of damage, for the purposes of paragraph 54(2)(b);

(c) establishing classes of damage for which compensation may not be paid; and

(d) extending the time limit set out in subsection 30(1) respecting prescribed classes of damage.

CONSEQUENTIAL AMENDMENTS

Nuclear Safety and Control Act

69. Subsection 42(3) of the Nuclear Safety and Control Act is replaced by the following:

(3) Nothing in this section shall be construed as limiting the liability of an operator under the Nuclear Liability and Compensation Act.

70. Section 64 of the Act is replaced by the following:

64. Nothing in section 58, 59, 60, 62 or 63 shall be construed as restricting

(a) any right, obligation or liability of any person arising under the Nuclear Liability and Compensation Act; or

(b) the jurisdiction of a nuclear claims tribunal established under the Nuclear Lia- bility and Compensation Act.

71. Section 82 of the Act is repealed.

Transportation of Dangerous Goods Act, 1992

72. Subsection 22(7) of the Transportation of Dangerous Goods Act, 1992 is replaced by the following:

(7) Nothing in this section relieves an operator, as defined in section 2 of the Nuclear Liability and Compensation Act, from any duty or liability imposed on the operator under that Act.

REPEAL

73. The Nuclear Liability Act is repealed.

COMING INTO FORCE

74. This Act comes into force on a day to be fixed by order of the Governor in Council.