Bill C-57

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First Reading

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1st Session, 41st Parliament,

60-61-62 Elizabeth II, 2011-2012-2013

house of commons of canada

BILL C-57

An Act to enact the Aviation Industry Indemnity Act, to amend the Aeronautics Act, the Canada Marine Act, the Marine Liability Act and the Canada Shipping Act, 2001 and to make consequential amendments to other Acts

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

SHORT TITLE

Short title

1. This Act may be cited as the Safeguarding Canada’s Seas and Skies Act.

PART 1

AVIATION INDUSTRY INDEMNITY ACT

Enactment of Act

Enactment

2. The Aviation Industry Indemnity Act is enacted as follows:

An Act respecting the indemnity of certain aviation industry participants for certain events

SHORT TITLE

Short title

1. This Act may be cited as the Aviation Industry Indemnity Act.

INTERPRETATION

Definitions

2. The following definitions apply in this Act.

“airport”
« aéroport »

“airport” has the same meaning as in subsection 3(1) of the Aeronautics Act.

“aviation industry participant”
« participant de l’industrie aérienne »

“aviation industry participant” means

(a) an air carrier, as defined in subsection 3(1) of the Aeronautics Act, that is a Canadian, as defined in subsection 55(1) of the Canada Transportation Act;

(b) NAV CANADA, a corporation incorporated on May 26, 1995 under Part II of the Canada Corporations Act;

(d) a supplier of goods or services that directly support the operation of aircraft from an airport, including with respect to

(i) the preparation of an aircraft for departure or on its arrival, including maintenance and cleaning of the aircraft and the loading and unloading of passengers, baggage and cargo,

(ii) freight forwarding,

(iii) air navigation, or

(iv) airport security services; or

(e) an entity that is prescribed by regulation or a member of a class of entity that is prescribed by regulation.

“event”
« événement »

“event” means

(a) an act of unlawful interference with an aircraft, airport or air navigation facility, including an act of terrorism; or

(b) an act or omission in the course of armed conflict, war, invasion, hostilities, civil war, revolution, rebellion, insurrection, an application of martial law, a usurpation or attempted usurpation of power, a civil commotion or a riot.

“Minister”
« ministre »

“Minister” means the Minister of Transport.

UNDERTAKING

Undertaking by Minister

3. (1) The Minister may, in writing, undertake to indemnify one or more aviation industry participants — or one or more classes of aviation industry participant — against their loss or damage, or liability for loss or damage, that is caused by an event.

Limitation

(2) The undertaking to indemnify is limited to

(a) loss, damage or liability, or any portion of it, that is not insured or otherwise indemnified; and

(b) loss, damage or liability that is not solely with respect to a loss of income.

Terms

(3) The Minister may attach terms to an undertaking, including terms that

(a) specify the event or class of event that is covered by the undertaking or that is excluded from coverage;

(b) specify the activity or class of activity in which an aviation industry participant engages that is covered by the undertaking or that is excluded from coverage;

(d) establish the maximum amount of indemnification, or the method to determine that amount, that may be paid out to an aviation industry participant per event;

(e) require that an aviation industry participant obtain a specified minimum amount of insurance coverage for events; and

(f) require that an aviation industry participant enter, at the Minister’s request, into an agreement with the Minister respecting the conduct or settlement of any proceedings to which the participant is a party that are related to loss, damage or liability covered by the undertaking.

Different terms

(4) In attaching terms to an undertaking, the Minister may distinguish among aviation industry participants, including among aviation industry participants of the same class, and may distinguish among classes of aviation industry participants.

Incorporation by reference

(5) An undertaking may incorporate any material by reference, regardless of its source, as it exists on a particular date.

No delegation

(6) The Minister must personally exercise the powers that are set out in this section.

Statutory Instruments Act

4. (1) The Statutory Instruments Act does not apply to an undertaking.

Publication

(2) The Minister must cause an undertaking, an amended undertaking or a notice of revocation of an undertaking to be published in Part I of the Canada Gazette within 23 days after the issuance, amendment or revocation.

Request for information

5. At any time after the Minister issues an undertaking, he or she may request that aviation industry participants who are covered by the undertaking provide him or her with any information that he or she specifies, including with respect to their eligibility and their existing level of insurance coverage for events covered by the undertaking.

CLAIM FOR INDEMNIFICATION

Notice of potential claim

6. (1) An aviation industry participant must provide the Minister with a written notice of a potential claim within two years after the day on which the event that could give rise to a claim occurred.

Information to be provided

(2) The aviation industry participant must provide the Minister with any additional information that the Minister considers necessary in the circumstances.

Claim and indemnification

7. (1) After an aviation industry participant submits a written claim for indemnification under an undertaking, the Minister must review the claim and — if a notice was provided in accordance with section 6 and the Minister determines that the claim is eligible for indemnification under the undertaking as it read on the day on which the event that gave rise to the claim occurred — indemnify the participant accordingly.

Further information

(2) The aviation industry participant must provide the Minister with any additional information that the Minister considers necessary to determine if the claim is eligible for indemnification.

Deeming — single event

(3) If the Minister considers that two or more events are directly connected by any factor or factors, including timing, cause or the parties involved, he or she may deem the events to be a single event.

Reliance on court or tribunal

(4) The Minister may, in determining if a claim is eligible for indemnification, rely on a final determination, not subject to any appeal, of a court or other tribunal, in or outside Canada.

Fault of aviation industry participant

(5) Despite subsection (1), the Minister is not required to indemnify an aviation industry participant if the Minister is of the opinion that the loss, damage or liability claimed is principally the fault of the aviation industry participant.

For greater certainty

(6) For greater certainty, the Minister’s determination of whether the claim is eligible for indemnification includes a determination of the amount, if any, of the indemnification.

Consolidated Revenue Fund

8. Any amount payable under an undertaking is to be paid out of the Consolidated Revenue Fund.

Subrogation

9. (1) Her Majesty is subrogated, to the extent of a payment under an undertaking to an aviation industry participant, to all of the participant’s rights in respect of the loss, damage or liability for which the payment was made.

Action

(2) Her Majesty may maintain an action, in the aviation industry participant’s name or in the name of Her Majesty, against any person to enforce those rights.

ASSESSMENT AND REPORT

Assessment

10. The Minister must, at least once every two years, assess whether it is feasible for aviation industry participants to obtain insurance coverage for events or other similar coverage.

Report

11. (1) The Minister must prepare a report on his or her activities under this Act within

(a) 90 days after the day on which he or she issued, amended or revoked an undertaking; and

(b) two years after the day on which a report was last tabled, if he or she has not, within that period, issued, amended or revoked an undertaking.

Tabling in Parliament

(2) The Minister must cause each report to be tabled in each House of Parliament within the first 15 days on which the House is sitting after the report is prepared.

REGULATIONS

Governor in Council

12. The Governor in Council may, on the Minister’s recommendation, make regulations for the purpose of this Act, including regulations

(a) prescribing an entity or class of entity for the purpose of the definition “aviation industry participant” in section 2; and

(b) respecting the circumstances in which an undertaking may cover only one aviation industry participant.

Consequential Amendments

R.S.C. 1970, c. W-3

Marine and Aviation War Risks Act

3. The long title of the Marine and Aviation War Risks Act is replaced by the following:

An Act respecting marine war risks insurance and reinsurance agreements

4. Section 1 of the Act is replaced by the following:

Short title

1. This Act may be cited as the Marine War Risks Act.

5. (1) The definition “aircraft” in section 2 of the Act is repealed.

(2) The definition “Account” in section 2 of the Act is replaced by the following:

“Account”
« compte »

“Account” means the Marine War Risks Insurance Account established under section 5;

6. Section 3 of the Act is replaced by the following:

Insurance and reinsurance agreements

3. The Minister, for the purpose of securing that ships are not laid up and that commerce is not interrupted by reason of lack of insurance facilities, may enter into an agreement, in the form and containing the terms and conditions that may be prescribed by the regulations or otherwise approved by the Governor in Council, with any person or association of persons for the insurance or reinsurance by the Minister against any or all war risks of vessels or cargo.

7. Paragraph 4(c) of the Act is replaced by the following:

(c) respecting the designation of countries of registry for the purposes of paragraph (c) of the definition “vessel” in section 2.

8. The portion of subsection 5(1) of the Act before paragraph (a) is replaced by the following:

Marine War Risks Insurance Account

5. (1) There shall be established in the accounts of Canada an account to be known as the Marine War Risks Insurance Account to which shall be credited

References

Reference replaced — Act

9. (1) Every reference to the Marine and Aviation War Risks Act is replaced by a reference to the Marine War Risks Act in any Act of Parliament other than the Marine War Risks Act and in any instrument made under an Act of Parliament or by or under the authority of the Governor in Council.

Reference replaced — Account

(2) Every reference to the Marine and Aviation War Risks Insurance Account is replaced by a reference to the Marine War Risks Insurance Account in any Act of Parliament other than the Marine War Risks Act and in any instrument made under an Act of Parliament or by or under the authority of the Governor in Council.

PART 2

R.S., c. A-2

AERONAUTICS ACT

Amendments to the Act

R.S., c. 33 (1st Supp.), s. 1

10. (1) The definition “Minister” in subsection 3(1) of the Aeronautics Act is replaced by the following:

“Minister”
« ministre »

“Minister” means

(a) subject to paragraph (b), the Minister of Transport or any other Minister that is designated by the Governor in Council as the Minister for the purposes of this Act, and

(b) the Minister of National Defence — or, under the direction of the Minister of National Defence, the Chief of the Defence Staff appointed under the National Defence Act — with respect to any matter relating to defence, including any matter relating to any of the following:

(i) military personnel, a military aeronautical product, a military aerodrome or military equipment of Canada or a foreign state, or a military facility of Canada or a foreign state relating to aeronautics, and

(ii) a service relating to aeronautics provided by such personnel, by means of such an aeronautical product or such equipment or at such an aerodrome or facility;

R.S., c. 33 (1st Supp.), s. 1

(2) Subsection 3(2) of the Act is replaced by the following:

“Minister” for certain purposes

(2) Despite the definition “Minister” in subsection (1), “Minister”, in relation to any matter referred to in paragraph 4.2(1)(n), 4.9(p), (q) or (r) or 8.7(1)(b), means the Minister of National Defence.

R.S., c. 33 (1st Supp.), s. 1

11. (1) Section 4.2 of the Act is renumbered as subsection 4.2(1).

R.S., c. 33 (1st Supp.), s. 1

(2) Paragraph 4.2(1)(n) of the Act is replaced by the following:

(n) subject to subsection (2), investigate matters relating to aviation safety; and

(3) Section 4.2 of the Act is amended by adding the following after subsection (1):

Exception — investigations of military-civilian occurrences

(2) Investigations of military-civilian occurrences, as defined in Part II, shall be carried out in accordance with that Part by the Airworthiness Investigative Authority, designated by the Minister under section 12.

12. The Act is amended by adding the following after section 4.3:

Authorization by authorized person

4.31 Any person whom the Minister of National Defence has authorized to exercise or perform powers, duties or functions relating to airworthiness may, in accordance with the authorization, authorize another person under their authority to exercise or perform any of those powers, duties or functions.

13. The Act is amended by adding the following after section 5.9:

Exemption by Minister of National Defence

6. (1) With respect to any matter relating to defence, the Minister of National Defence or an officer of the Department of National Defence or of the Canadian Forces who is authorized by the Minister may, on any terms that the Minister or officer, as the case may be, considers necessary, exempt by order any person, aeronautical product, aerodrome, facility or service, or any class of persons, aeronautical products, aerodromes, facilities or services, from the application of any regulation, order or security measure made under this Part if the exemption, in the opinion of the Minister or officer, as the case may be, is in the public interest and is not likely to adversely affect aviation safety or security.

Exemption from Statutory Instruments Act

(2) An order made under subsection (1) is exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act.

14. The Act is amended by adding the following after section 6.2:

Certificate

6.21 A certificate purporting to be signed by the Minister of National Defence or the Chief of the Defence Staff and stating that a notice containing the regulation or notice referred to in paragraph 6.2(1)(a) was given to persons likely to be affected by it is, in the absence of evidence to the contrary, proof that notice was given to those persons.

R.S., c. 33 (1st Supp.), s. 1; 1989, c. 3, s. 39

15. Section 6.3 of the Act and the heading before it are repealed.

1989, c. 3, s. 40

16. Section 6.4 of the Act is repealed.

2001, c. 29, s. 34

17. Section 6.7 of the Act is replaced by the following:

Non-application of certain provisions

6.7 Sections 6.71 to 7.21 do not apply to any military personnel of Canada or a foreign state acting in the course of their duties in relation to a Canadian aviation document issued in respect of a military aeronautical product, a military aerodrome, military equipment, a military facility relating to aeronautics or a service relating to aeronautics provided by means of such an aeronautical product or such equipment or at such an aerodrome or facility.

18. Section 8.7 of the Act is amended by adding the following after subsection (1):

Matters relating to defence

(1.01) The Minister of Transport may exercise the powers set out in subsection (1) with regard to any matter relating to defence with the authorization of the Minister of National Defence.

19. The Act is amended by adding the following after section 9:

PART II

MILITARY INVESTIGATIONS INVOLVING CIVILIANS

Interpretation

Definitions

10. (1) The following definitions apply in this Part.

“Authority”
« directeur »

“Authority” means the Airworthiness Investigative Authority designated under subsection 12(1).

“civilian”
« civil »

“civilian” means a person who is not subject to the Code of Service Discipline set out in Part III of the National Defence Act.

“department”
« ministère »

“department” means

(a) any department of the Government of Canada, including the minister responsible for it and any person acting on behalf of that minister;

(b) any body listed in the schedule to the Canadian Transportation Accident Investigation and Safety Board Act; and

“military-civilian occurrence”
« accident militaro-civil »

“military-civilian occurrence” means

(a) any accident or incident involving

(i) an aircraft operated by or on behalf of the Department of National Defence, the Canadian Forces or a visiting force, or an installation operated by or on behalf of any of the above that is designed or used for the manufacture of an aircraft or other aeronautical product, or that is being used for the operation or maintenance of an aircraft or other aeronautical product, and

(ii) a civilian; or

(b) any situation or condition that the Authority has reasonable grounds to believe could, if left unattended, induce an accident or incident described in paragraph (a).

“visiting force”
« force étrangère présente au Canada »

“visiting force” has the same meaning as in section 2 of the Visiting Forces Act.

Application

(2) This section and sections 11 to 24.7 apply in respect of military-civilian occurrences

(a) in or over Canada;

(b) in or over any place that is under Canadian air traffic control; and

(i) Canada is requested to investigate the occurrence by an appropriate authority,

(ii) the civilians involved are employed in that place by the Department of National Defence or by the Canadian Forces, or

(iii) the civilians involved are in Canada.

Authorization by Minister

Power

11. The Minister may authorize any person or class of persons to exercise or perform, subject to any restrictions or conditions that the Minister specifies, any of the powers, duties or functions of the Minister under this Part.

Airworthiness Investigative Authority

12. (1) The Minister shall designate from among the members of the Canadian Forces or the employees of the Department of National Defence an individual to be the Airworthiness Investigative Authority, who is to be responsible for advancing aviation safety by

(a) investigating military-civilian occurrences, in order to find their causes and contributing factors;

(b) identifying safety deficiencies as evidenced by military-civilian occurrences;

(d) providing reports to the Minister on the investigations and the findings in relation to them.

Restriction

(2) In making findings in an investigation of a military-civilian occurrence, it is not the Authority’s function to assign fault or determine civil or criminal liability, but the Authority shall not refrain from making a full report merely because fault or liability might be inferred from the Authority’s findings.

Restriction

(3) No finding of the Authority may be construed as assigning fault or determining civil or criminal liability.

Findings not binding

(4) The Authority’s findings are not binding on the parties to any legal, disciplinary or other proceedings.

Investigations of Military-Civilian Occurrences

Investigations

Investigators

13. (1) The Authority may act as an investigator under this Part with respect to a military-civilian occurrence, and may designate as an investigator to investigate such an occurrence in accordance with this Part on the Authority’s behalf any person, or member of a class of persons, that the Authority considers qualified.

Certificate

(2) The Authority shall give a designated investigator a certificate of designation specifying the terms of their designation.

Report

(3) A designated investigator shall report to the Authority with respect to the investigation of a military-civilian occurrence.

Definitions

14. (1) The following definitions apply in this section.

“information”
« renseignement »

“information” includes a record regardless of its form and a copy of a record.

“place”
« lieu »

“place” includes an aircraft, any premises and any building or other structure erected on those premises.

Powers of investigators

(2) If an investigator believes on reasonable grounds that there is or might be, at or in any place, any thing relevant to the investigation of a military-civilian occurrence, the investigator may, subject to subsection (3), enter and search that place for such a thing, and seize any such thing that is found in the course of that search, including an aircraft or part of one.

Conditions for exercise of powers

(3) An investigator shall not exercise the powers referred to in subsection (2) in relation to a particular place without the consent of the person apparently in charge of that place unless

(a) those powers are exercised under the authority of a warrant; or

(b) by reason of exigent circumstances, it would not be practical for the investigator to obtain a warrant.

Warrant

(4) If a justice of the peace is satisfied by information on oath that an investigator believes on reasonable grounds that there is or might be, at or in any place, any thing relevant to the investigation of a military-civilian occurrence, the justice may, on ex parte application, sign and issue a warrant authorizing the investigator to enter and search that place for such a thing and to seize any such thing that is found in the course of that search.

Warrants may be obtained by telephone, etc.

(5) The procedure set out in section 487.1 of the Criminal Code applies in relation to the obtaining of warrants under this section, subject to regulations made under paragraph 24.5(1)(g).

Power to test things seized, etc.

(6) If any thing is seized by an investigator under subsection (2), the investigator

(a) may, subject to paragraph (b), cause to be conducted on the thing any tests, including tests to destruction, that are necessary for the purposes of the investigation;

(b) shall, to the extent that it is practical and safe to do so without unreasonably impeding the progress of the investigation,

(i) take all reasonable measures to invite the owner of the thing, and any person who appears on reasonable grounds to be entitled to it, to be present at such tests, and

(ii) allow them to be present at those tests; and

(c) subject to the need to conduct such tests, shall cause the thing to be preserved pending its return under section 15.

Power to prohibit or limit access

(7) An investigator may, in the course of an investigation of a military-civilian occurrence, and for the purposes of preserving and protecting any thing involved or likely to have been involved, whether or not the thing has been seized under this section, prohibit or limit access to the area immediately surrounding the place at which the thing is located for any period that is necessary for the purposes of the investigation.

Disruption to be minimized

(8) In exercising the power conferred by subsection (7), an investigator shall have regard to the desirability of minimizing any resulting disruption to transportation services.

Prohibition

(9) No person shall knowingly enter an area in contravention of a prohibition or limitation of access under subsection (7).

Additional powers of investigators

(10) An investigator may do any of the following, on notice in writing to the person concerned, if their belief is based on reasonable grounds:

(a) if the investigator believes that a person has information relevant to an investigation,

(i) require the person to produce the information to the investigator or to attend before the investigator and give a statement referred to in section 24.1, under oath or solemn affirmation if required by the investigator, and

(ii) make any copies of and take any extracts from the information that the investigator considers necessary for the purposes of the investigation;

(b) require a person who is directly or indirectly involved in the operation of an aircraft to submit to a medical examination, if the investigator believes that the examination is or might be relevant to the investigation;

(c) require a physician or health practitioner to provide information concerning a patient to the investigator, if the investigator believes that the information is or might be relevant to the investigation; or

(d) require the person who has custody of the body of a deceased person or other human remains to permit the performance of an autopsy on the body or other medical examination on the remains, and cause it to be performed, if the investigator believes that the autopsy or other medical examination is or might be relevant to the investigation.

Offence — paragraph (10)(a), (c) or (d)

(11) No person shall refuse or fail to produce information to an investigator, or to attend before an investigator and give a statement, in accordance with a requirement imposed under paragraph (10)(a), to provide information in accordance with a requirement imposed under paragraph (10)(c) or to make the body of a deceased person or other human remains available for the performance of an autopsy or other medical examination in accordance with a requirement imposed under paragraph (10)(d).

Offence — paragraph (10)(b)

(12) No person shall refuse or fail to submit to a medical examination in accordance with a requirement imposed under paragraph (10)(b), but information obtained as a result of such an examination is privileged and, subject to the Authority’s power to make any use of it that the Authority considers necessary in the interests of aviation safety, no person shall knowingly communicate it or permit it to be communicated to any person.

Legal proceedings

(13) No person is to be required to produce information referred to in subsection (12) or to give evidence relating to it in any legal, disciplinary or other proceedings.

Certificate to be produced

(14) Before acting under this section, an investigator shall, on request, produce their certificate of designation to any person in relation to whom the investigator acts.

Meaning of medical examination

(15) The requirement under paragraph (10)(b) that a person submit to a medical examination does not require the person to submit to any procedure involving surgery, perforation of the skin or any external tissue or the entry into the body of any drug or foreign substance.

Use of force

(16) In executing a warrant under this section, an investigator shall not use force unless the investigator is accompanied by a peace officer and the use of force is specifically authorized in the warrant.

Failure to produce document, etc.

(17) If an investigator has required a person to do something under subsection (10) and the person has refused or failed to do as required, the investigator may make an application to the Federal Court or a superior court of a province setting out the facts, and the court may inquire into the matter and, after giving the person an opportunity to comply with the requirement, take steps for their punishment as if they had been guilty of contempt of the court, or may make any other order that it considers appropriate.

Return of seized property

15. (1) Anything seized under section 14 — except on-board recordings as defined in subsection 22(1) — shall, as soon as possible after it has served the purpose for which it was seized, be returned to the owner or the person who appears on reasonable grounds to be entitled to it, or to the person from whom it was seized, unless

(a) the owner or the person who appears on reasonable grounds to be entitled to it consents otherwise in writing; or

(b) a court of competent jurisdiction orders otherwise.

Application for return

(2) A person from whom anything was seized under section 14 — except on-board recordings as defined in subsection 22(1) — or the owner or any other person who appears on reasonable grounds to be entitled to it may apply to a court of competent jurisdiction for an order that the seized thing be returned to them.

Order for return

(3) If, on an application under subsection (2), the court is satisfied that the seized thing has served the purpose for which it was seized or should, in the interests of justice, be returned to the applicant, the court may grant the application and order the seized thing to be returned to the applicant, subject to any terms that appear necessary or desirable to ensure that the thing is safeguarded and preserved for any purpose for which it might subsequently be required by the Authority under this Act.

Exception

(4) This section does not apply in respect of anything seized and tested to destruction in accordance with subsection 14(6).

Miscellaneous Provisions

Notification of Authority

16. (1) If a department is notified of a military-civilian occurrence, the department shall

(a) immediately provide the Authority with particulars of the occurrence; and

(b) as soon as feasible after complying with paragraph (a), advise the Authority of any investigation that it plans to conduct and of any remedial measures that it plans to take.

Investigator as observer

(2) An investigator authorized by the Authority may attend as an observer at an investigation conducted by the department or during the taking of remedial measures by the department following a military-civilian occurrence.

Authority may review and comment

(3) Subject to any other Act or law, the Authority shall, on request, be provided with, and may review and comment on, any interim or final report prepared in respect of an investigation conducted by the department.

Notification by Authority

17. (1) If the Authority is notified of a military-civilian occurrence, the Authority shall

(a) immediately provide particulars of the occurrence to any minister responsible for a department that has a direct interest in the occurrence; and

(b) as soon as feasible after complying with paragraph (a), advise the ministers referred to in paragraph (a) of any investigation that the Authority plans to conduct and of its scope.

Observers

(2) Subject to any conditions that the Authority imposes, a person may attend as an observer at an investigation of a military-civilian occurrence conducted by the Authority if the person

(a) is designated as an observer by the minister responsible for a department that has a direct interest in the subject matter of the investigation;

(b) has observer status or is an accredited representative or an adviser to an accredited representative, under an international agreement or convention relating to transportation to which Canada is a party; or

(c) is invited by the Authority to attend as an observer because, in the Authority’s opinion, the person has a direct interest in the subject matter of the investigation and is likely to contribute to achieving its object.

Observer may be removed

(3) The Authority may remove an observer from an investigation if the observer contravenes a condition imposed by the Authority or if, in the Authority’s opinion, the observer’s participation is likely to create a situation of conflict of interest that will impede the conduct of the investigation.

Report to the Minister

18. (1) On completion of an investigation, the Authority shall provide a report to the Minister on the Authority’s findings, including any safety deficiencies that the Authority has identified and any recommendations relating to aviation safety that the Authority considers appropriate.

Representations on draft report

(2) Before providing the report to the Minister, the Authority shall, on a confidential basis, send a copy of the draft report on the investigation’s findings and any safety deficiencies identified to each minister responsible for a department that has a direct interest in the findings, as well as to any other person who, in the Authority’s opinion, has a direct interest in the findings, and shall give that minister or other person a reasonable opportunity to make representations to the Authority with respect to the draft report before the final report is prepared.

Confidentiality of draft report

(3) No person shall communicate or use the draft report, or permit its communication or use, for any purpose — other than the taking of remedial measures — that is not strictly necessary to the study of the draft report or to the making of representations with respect to it.

Manner of dealing with representations

(4) The Authority shall

(a) receive representations made under subsection (2) in any manner the Authority considers appropriate;

(b) keep a record of those representations;

(d) notify in writing each of the persons who made those representations, indicating how the Authority has disposed of the representations made by that person.

Protection of representations

(5) A representation is privileged, except for one made by a minister responsible for a department that has a direct interest in the findings of the investigation. Subject to any other provisions of this Part or to a written authorization from the author of a representation, no person, including any person to whom access is provided under this section, shall knowingly communicate it or permit it to be communicated to any person.

Use by Authority

(6) The Authority may use representations as the Authority considers necessary in the interests of aviation safety.

Making representations available to coroner

(7) If requested to do so by a coroner conducting an investigation into any circumstances in respect of which representations were made to the Authority, the Authority shall make them available to the coroner.

Prohibition of use

(8) Except for use by a coroner for the purpose of an investigation, no person is to use representations in any legal, disciplinary or other proceedings.

Notification of findings and recommendations

(9) The Authority shall

(a) during an investigation of a military-civilian occurrence, immediately notify in writing any minister or person who, in the Authority’s opinion, has a direct interest in the investigation’s findings, of any of his or her findings and recommendations, whether interim or final, that, in the Authority’s opinion, require urgent action; and

(b) on completion of the investigation, notify in writing any minister or person who, in the Authority’s opinion, has a direct interest in the investigation’s findings, of his or her findings as to the causes and contributing factors of the military-civilian occurrence, any safety deficiencies he or she has identified and any recommendations resulting from his or her findings.

Minister to reply to Authority

(10) A minister, other than the Minister of National Defence, who is notified under subsection (9) of any findings and recommendations on matters relating to defence shall, within 90 days after the day on which they were notified,

(a) advise the Minister and the Authority in writing of any action taken or proposed to be taken in response to those findings and recommendations; or

(b) provide written reasons to the Minister and the Authority if no action will be taken or if the action to be taken differs from the action that was recommended.

Extension of time

(11) If the Authority is satisfied that a minister is unable to reply within the period referred to in subsection (10), the period may be extended as the Authority considers necessary.

Interim report

19. (1) The Authority shall, on a confidential basis, provide an interim report on the progress and findings of an investigation

(a) to any minister responsible for a department that has a direct interest in the subject matter of the investigation, on written request made in respect of that investigation; and

(b) to any coroner investigating the military-civilian occurrence, if it involved a death and significant progress has been made in the investigation.

Limited purpose only

(2) A person, other than a minister, who is provided with an interim report under subsection (1) shall not use the report, or permit its use, for any purpose not strictly necessary to its examination.

Power to reconsider

20. (1) The Authority may, at any time, reconsider any findings and recommendations made on the basis of an investigation of a military-civilian occurrence under this Part.

Duty to reconsider

(2) The Authority shall reconsider the findings and recommendations made on the basis of an investigation under this Part if, in his or her opinion, new material facts appear.

Power to authorize

21. (1) Subject to subsection (2), the Authority may authorize any person, subject to any limitations specified in the authorization, to exercise or perform any of the powers, duties or functions conferred or imposed on the Authority under this Part, other than the power of authorization under this subsection.

Revocation

(2) The authorization may be revoked by the Authority in writing.

Privilege

Definition of “on-board recording”

22. (1) In this section and in section 23, “on-board recording” means the whole or any part of either a recording of voice communications originating from an aircraft, or received on or in the flight deck of an aircraft, or a video recording of the activities of the operating personnel of an aircraft, that is made, using recording equipment that is intended not to be controlled by the operating personnel, on the flight deck of the aircraft, and includes a transcript or substantial summary of such a recording.

Privilege for on-board recordings

(2) Every on-board recording in respect of an aircraft is privileged whether or not that aircraft has been involved in a military-civilian occurrence and, except as provided by this section and section 23, no person, including any person to whom access is provided under those sections, shall knowingly communicate an on-board recording or permit one to be communicated to any person.

Legal proceedings

(3) Except as provided by this section and section 23, no person is to be required to produce an on-board recording or to give evidence relating to one in any legal, discipli-nary or other proceedings.

Use authorized by Authority

(4) The Authority may, subject to any restrictions or conditions that he or she specifies, authorize any person or class of persons to make use of any on-board recording in the interests of aviation safety.

Access by investigator

(5) Any on-board recording that relates to a military-civilian occurrence being investigated under this Part shall be released to an investigator who requests it for the purposes of the investigation.

Use by Authority

(6) The Authority may make any use that he or she considers necessary in the interests of aviation safety of any on-board recording obtained by an investigator under this Part but, subject to subsections (7) and 23(1), (4) and (6), shall not knowingly communicate or permit to be communicated to anyone any portion of it that is unrelated to the causes or contributing factors of the military-civilian occurrence under investigation or to the identification of safety deficiencies.

Access by coroners and other investigators

(7) The Authority shall make available any on-board recording obtained in the course of an investigation of a military-civilian occurrence

(a) to a coroner who requests access to it for the purpose of an investigation that the coroner is conducting; or

(b) to any person carrying out a coordinated investigation under section 18 of the Canadian Transportation Accident Investigation and Safety Board Act.

Power of court or coroner

(8) Despite anything in this section, if, in any proceedings before a court or coroner, a request for the production and discovery of an on-board recording is made, the court or coroner shall

(a) cause notice of the request to be given to the Authority, if the Authority is not a party to the proceedings;

(b) examine the on-board recording in camera and give the Authority a reasonable opportunity to make representations with respect to it; and

(c) if the court or coroner concludes in the circumstances of the case that the public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recording by virtue of this section, order the production and discovery of the on-board recording, subject to any restrictions or conditions that the court or coroner considers appropriate, and may require any person to give evidence that relates to it.

Restriction

(9) An on-board recording is not to be used against any of the following persons in disciplinary proceedings, in proceedings relating to their capacity or competence to perform their functions, or in legal or other proceedings: air traffic controllers, aircraft crew members, airport vehicle operators, flight service station specialists and persons who relay messages respecting air traffic control or related matters.

Definition of “court”

(10) For the purposes of subsection (8), “court” includes any person appointed or designated to conduct a public inquiry into a military-civilian occurrence under the Inquiries Act.

On-board recording — board of inquiry

23. (1) The Authority shall make available to a board of inquiry convened under section 45 of the National Defence Act any on-board recording in respect of an aircraft, whether or not that aircraft has been involved in a military-civilian occurrence, if

(a) the president of that board makes a written request, together with reasons, for access to the on-board recording; and

(b) after considering the reasons, the Authority determines that

(i) the aircraft was operated by or on behalf of the Canadian Forces when the on-board recording was made, and

(ii) the public interest in the proper administration of the Canadian Forces outweighs in importance the privilege attached to the on-board recording by virtue of section 22.

Notice of refusal

(2) If the Authority refuses the request, he or she shall give written notice of the refusal to the president and reasons for it.

Request to Minister

(3) On receipt of the notice of refusal, the president may make a written request to the Minister for access to the on-board recording. If the president makes such a request, he or she shall include the written reasons originally submitted to the Authority, along with the Authority’s reasons for refusal, and may include additional written representations, a copy of which is to be provided to the Authority.

Determination by Authority — additional representations

(4) The Authority shall, on receipt of any additional representations, consider them and,

(a) if he or she determines that the representations raise a new issue and makes the determinations listed in paragraph (1)(b), he or she shall so notify the Minister and make available the on-board recording to the board of inquiry; or

(b) if he or she determines that the representations do not raise a new issue or determines that the representations do raise a new issue but does not make the determinations listed in paragraph (1)(b), he or she shall not make available the on-board recording to the board of inquiry, shall give written notice to the Minister of the determination and the reasons for it, and shall provide a copy to the president.

Consideration by Minister

(5) On receipt of a request under subsection (3) without any additional written representations, the Minister shall consider the reasons included with the president’s request. If a request under subsection (3) includes additional written representations, the Minister shall, on receipt of notice of the Authority’s refusal under paragraph (4)(b) to make available the on-board recording to the board of inquiry, consider the reasons included with the president’s request together with the additional written representations and the Authority’s written reasons for the refusal in response to those representations. The Minister may, in consideration of the request, examine the on-board recording in camera.

Determination by Minister

(6) The Minister shall

(a) direct the Authority to make the on-board recording available to the board of inquiry, subject to any restrictions or conditions that the Minister considers appropriate, if the Minister makes the determinations listed in paragraph (1)(b); or

(b) so notify the president and the Authority if the Minister does not make the determinations listed in paragraph (1)(b).

Decision final

(7) The Minister’s decision is final and binding and not subject to appeal or review by any court.

Exception

(8) Despite subsection 22(9), an on-board recording that is made available to a board of inquiry under this section may be used in other proceedings relating to the capacity or competence of any person who is subject to the Code of Service Discipline set out in Part III of the National Defence Act.

Definition of “communication record”

24. (1) In this section, “communication record” means the whole or any part of any record, recording, copy, transcript or substantial summary of any type of communications respecting air traffic control or related matters that take place between any of the following persons: air traffic controllers, aircraft crew members, airport vehicle operators, flight serv-ice station specialists and persons who relay messages respecting air traffic control or related matters.

Restriction

(2) A communication record obtained in the course of an investigation of a military-civilian occurrence under this Part is not to be used against a member of the Canadian Forces or any person referred to in subsection (1) in any legal proceedings or, subject to any applicable collective agreement, in any disciplinary proceedings.

Definition of “statement”

24.1 (1) For the purposes of this section and section 14, “statement” means

(a) the whole or any part of an oral, written or recorded statement relating to a military-civilian occurrence that is given by the author of the statement to the Authority, an investigator or any person acting for the Authority;

(b) a transcription or substantial summary of a statement referred to in paragraph (a); or

Statement privileged

(2) A statement and the identity of the person who made it are privileged and, except as provided by this Part or as authorized in writing by the person who made the statement, no person, including any person to whom access is provided under this section, shall knowingly communicate a statement or permit it to be communicated to any person, or disclose the identity of the person who made it.

Use by Authority

(3) The Authority may use any statement as he or she considers necessary in the interests of aviation safety.

Access by coroners and other investigators

(4) The Authority shall make statements available

(a) to a coroner who requests access to them for the purpose of an investigation that the coroner is conducting; and

(b) to any person carrying out a coordinated investigation under section 18 of the Canadian Transportation Accident Investigation and Safety Board Act.

Power of court or coroner

(5) Despite anything in this section, if, in any proceedings before a court or coroner, a request for the production and discovery of a statement is contested on the ground that it is privileged, the court or coroner shall

(a) examine the statement in camera; and

(b) if the court or coroner concludes that, in the circumstances of the case, the public interest in the proper administration of justice outweighs in importance the privilege attached to the statement by virtue of this section, order the production and discovery of the statement, subject to any restrictions or conditions that the court or coroner considers appropriate, and may require any person to give evidence that relates to it.

Restriction

(6) A statement is not to be used against the person who made it in any legal, disciplinary or other proceedings except in a prosecution for perjury or for giving contradictory evidence or a prosecution under section 24.6.

Definition of “court”

(7) For the purposes of subsection (5), “court” includes any person appointed or designated to conduct a public inquiry into a military-civilian occurrence under the Inquiries Act.

Reporting of military-civilian occurrences

24.2 (1) The Governor in Council may make regulations for the establishment and administration of systems for the mandatory or voluntary reporting by civilians to the Authority of any of the following:

(a) military-civilian occurrences;

(b) any other accident or incident involving an aircraft or installation referred to in subparagraph (a)(i) of the definition “military-civilian occurrence” in subsection 10(1);

(c) any situation or condition that the Authority has reasonable grounds to believe could, if left unattended, induce an accident or incident described in paragraph (b); and

(d) any classes of the occurrences, accidents, incidents, situations or conditions referred to in any of paragraphs (a) to (c) that are specified in the regulations.

Use of reports

(2) The Authority may, subject to this section, use any report made under regulations made under subsection (1) that he or she considers necessary in the interests of aviation safety.

Protection of identity

(3) Regulations made under subsection (1) may provide for the protection of the identity of persons who make a report under those regulations.

Certain information privileged

(4) If a person’s identity is protected by provisions referred to in subsection (3), information that could reasonably be expected to reveal that identity is privileged, and no person shall knowingly communicate it or permit it to be communicated to any person.

Legal proceedings

(5) No person is to be required to produce information referred to in subsection (4) or to give evidence relating to the information in any legal, disciplinary or other proceedings.

Restriction

(6) A report made under a voluntary reporting system established by regulations made under subsection (1) is not to be used against the person who made the report in any legal, disciplinary or other proceedings if the person’s identity is protected by provisions referred to in subsection (3).

Evidence of Authority and of Investigators

Appearance of investigator

24.3 Except for proceedings before and investigations by a coroner, neither the Authority nor an investigator is competent or compellable to appear as a witness in any proceedings unless the court or other person or body before whom the proceedings are conducted so orders for special cause.

Opinions inadmissible

24.4 An opinion of the Authority or an investigator is not admissible in evidence in any legal, disciplinary or other proceedings.

Regulations

24.5 (1) The Governor in Council may make regulations

(a) prescribing the manner of exercising or performing any of the powers, duties and functions of an investigator designated under subsection 13(1);

(b) respecting the keeping and preservation of records, documents and other evidence relating to military-civilian occurrences;

(d) respecting, for the purposes of an investigation of a military-civilian occurrence, the sites of such an occurrence and prescribing rules for their protection;

(e) defining the rights or privileges of persons attending investigations as observers or with observer status;

(f) respecting the tariff of fees and expenses to be paid to any witness attending at an investigation of a military-civilian occurrence, and the conditions under which fees or expenses may be paid to such a witness;

(g) respecting the forms of warrants issued under section 14 and the modifications to be made to section 487.1 of the Criminal Code in its application to section 14; and

(h) generally for carrying out the purposes and provisions of this Part.

Publication of proposed regulations

(2) A copy of each regulation that the Governor in Council proposes to make under subsection (1) or section 24.2 shall be published in the Canada Gazette at least 60 days before its proposed effective date, and interested persons shall be given a reasonable opportunity within those 60 days to make representations with respect to it.

Exceptions

(3) Subsection (2) does not apply in respect of a proposed regulation that

(a) has previously been published under that subsection, whether or not it has been changed as a result of representations made under that subsection; or

(b) makes no substantive change to an existing regulation.

Offences

24.6 (1) Every person is guilty of an indictable offence and liable on conviction to a term of imprisonment not exceeding two years, or is guilty of an offence punishable on summary conviction, who

(a) contravenes subsection 14(9), (11) or (12);

(b) without lawful excuse, intentionally resists or otherwise obstructs an investigator in the exercise or performance of powers, duties or functions under this Part;

(c) knowingly gives false or misleading information in any investigation of a military-civilian occurrence under this Part; or

(d) makes a report under section 24.2 that they know to be false or misleading.

Offence

(2) Every person who contravenes a provision of this Part, or of the regulations made under this Part, for which no punishment is specified is guilty of an offence punishable on summary conviction.

Evidence

24.7 (1) Subject to subsections (2) and (3), the following reports and documents are admissible in evidence in any prosecution for an offence under this Part without proof of the signature or official character of the person appearing to have signed the report or certified the document, and are, in the absence of evidence to the contrary, proof of the statements contained in such a report or the contents of such a document:

(a) a report purporting to have been signed by an investigator stating that the investigator has exercised any power under section 14 and stating the results of the exercise of the power; and

(b) a document purporting to have been certified by an investigator as a true copy of or extract from a document produced to the investigator under subsection 14(10).

Notice

(2) No report or document is to be received in evidence under subsection (1) unless the party intending to produce it has, at least seven days before producing it, served on the party against whom it is intended to be produced a notice of that intention, together with a copy of the report or document.

Cross- examination

(3) The party against whom a report or document is produced under subsection (1) may require the attendance, for the purposes of cross-examination, of the person who appears to have signed the report or certified the document as a true copy or extract.

Military Investigations under Part I

Application of certain provisions

24.8 Section 14, subsections 18(1) to (9) and sections 22 to 24.4 apply, with any necessary modifications, in respect of an investigation of an accident or incident relating to aeronautics that the Minister of National Defence has directed the Authority to carry out other than an investigation of a military-civilian occurrence.

1996, c. 10, s. 205(1)

20. (1) The portion of subsection 27(1) of the Act before paragraph (a) is replaced by the following:

Proof of documents

27. (1) In any action or proceeding under this Act, any document purporting to be certified by the Minister of Transport, the Secretary of the Department of Transport or the Secretary of the Canadian Transportation Agency — or, with respect to any matter relating to defence, by the Minister of National Defence or the Chief of the Defence Staff — as a true copy of a document made, given or issued under this Act is, without proof of the signature or of the official character of the person appearing to have signed the document, evidence

1996, c. 10, s. 205(2)

(2) The portion of subsection 27(2) of the Act before paragraph (a) is replaced by the following:

Certificate

(2) In any action or proceeding under this Act, any certificate purporting to be signed by the Minister of Transport or the Secretary of the Department of Transport — or, with respect to any matter relating to defence, by the Minister of National Defence or the Chief of the Defence Staff — is evidence of the facts stated in it, without proof of the signature or of the official character of the person appearing to have signed the certificate and without further proof of the certificate, if the certificate states that a document, authorization or exemption under this Act

R.S., c. 33 (1st Supp.), s. 4

(3) The portion of subsection 27(2) of the English version of the Act after paragraph (b) is repealed.

Consequential Amendments

R.S., c. A-1

Access to Information Act

21. Schedule II to the Access to Information Act is amended by replacing “subsections 4.79(1) and 6.5(5)” opposite “Aeronautics Act” with “subsections 4.79(1), 6.5(5), 22(2) and 24.2(4)”.

R.S., c. N-5

National Defence Act

22. Section 45 of the National Defence Act is amended by adding the following after subsection (2):

Access to on-board recordings

(3) For greater certainty, a board of inquiry may have access to an on-board recording, as defined in subsection 22(1) of the Aeronautics Act, only if it is made available under that Act.

1989, c. 3

Canadian Transportation Accident Investigation and Safety Board Act

23. Subsection 18(4) of the Canadian Transportation Accident Investigation and Safety Board Act is replaced by the following:

Investigations to be coordinated

(4) If a transportation occurrence referred to in subsection (3) is being investigated by the Board and by the Department of National Defence, the Canadian Forces or a visiting force, the Board and either the Minister of National Defence or the Authority designated under section 12 of the Aeronautics Act shall take all reasonable measures to ensure that the investigations are coordinated.

Transitional Provisions

Existing investigations — military-civilian occurrences

24. (1) On the coming into force of Part II of the Aeronautics Act (referred to in this section as “the Act”), as enacted by section 19 of this Act, that Part applies to any investigation already begun of an accident or incident relating to aeronautics that would have been considered a military-civilian occurrence, as defined in that Part, and the Airworthiness Investigative Authority designated by the Minister of National Defence under section 12 of the Act shall continue the investigation in accordance with that Part.

Completed investigations — military-civilian occurrences

(2) If, on the coming into force of Part II of the Act, an investigation referred to in subsection (1) has been completed but no report on it has been provided to the Minister of National Defence, then the following provisions apply on the coming into force of that Part: subsections 18(1) to (9) of the Act, the provisions of sections 22 to 24.1 of the Act relating to on-board recordings, communication records and statements, as defined in sections 22, 24 and 24.1 of the Act, respectively, and the provisions of section 24.2 of the Act relating to reporting by civilians.

Existing military investigations

25. If, on the coming into force of Part II of the Aeronautics Act (referred to in this section as “the Act”), as enacted by section 19 of this Act, an investigation by or under the authority of the Minister of National Defence of an accident or incident relating to aeronautics that would not have been considered a military-civilian occurrence, as defined in that Part, has already begun, or one has been completed but no report on it has been provided to that Minister, then the following provisions apply on the coming into force of that Part: subsections 18(1) to (9) of the Act, the provisions of sections 22 to 24.1 of the Act relating to on-board recordings, communication records and statements, as defined in sections 22, 24 and 24.1 of the Act, respectively, and the provisions of section 24.2 of the Act relating to reporting by civilians.

Coming into Force

Sixty days after royal assent

26. (1) Subject to subsection (2), this Part comes into force 60 days after the day on which this Act receives royal assent.

Order in council

(2) Subsection 10(2) and section 15 come into force on a day to be fixed by order of the Governor in Council.

PART 3

1998, c. 10

CANADA MARINE ACT

2008, c. 21, s. 10

27. Subsection 14(2.2) of the Canada Marine Act is replaced by the following:

Effective day of appointment

(2.2) A director’s appointment made by a municipality or province takes effect on the day on which notice of the appointment is received by the port authority.

PART 4

2001, c. 6

MARINE LIABILITY ACT

Amendments to the Act

2009, c. 21, s. 11

28. The heading of Part 6 of the Marine Liability Act is replaced by the following:

LIABILITY AND COMPENSATION — OIL AND HAZARDOUS AND NOXIOUS SUBSTANCES

29. (1) The definition “owner” in subsection 47(1) of the English version of the Act is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d):

(e) in relation to the Hazardous and Noxious Substances Convention, has the same meaning as in Article 1 of that Convention.

(2) Subsection 47(1) of the Act is amended by adding the following in alphabetical order:

“Hazardous and Noxious Substances Convention”
« Convention sur les substances nocives et potentiellement dangereuses »

“Hazardous and Noxious Substances Convention” means the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 2010, concluded at London on April 30, 2010.

“HNS Fund”
« Fonds SNPD »

“HNS Fund” means the International Hazardous and Noxious Substances Fund established by Article 13 of the Hazardous and Noxious Substances Convention.

(3) Subsection 47(2) of the Act is amended by striking out “and” at the end of paragraph (c), by adding “and’’ at the end of paragraph (d) and by adding the following after paragraph (d):

(e) Article 1 of the Hazardous and Noxious Substances Convention.

2009, c. 21, s. 11

(4) Subsection 47(3) of the Act is replaced by the following:

Inconsistency

(3) In the event of an inconsistency between this section and sections 48 to 74.4 and 79 to 90 and the Civil Liability Convention, the Fund Convention, the Supplementary Fund Protocol, the Bunkers Convention or the Hazardous and Noxious Substances Convention, those sections prevail to the extent of the inconsistency.

2009, c. 21, s. 11

30. Subsection 54(2) of the French version of the Act is replaced by the following:

Preuve de publication

(2) Dans les trente jours suivant la constitution du fonds de limitation, elle dépose à la Cour d’amirauté les avis publiés.

31. The Act is amended by adding the following after section 74:

Hazardous and Noxious Substances Convention

Force of law

74.01 Articles 1 to 5, 7 to 23, 37 to 41, 45, 48 and 52 of the Hazardous and Noxious Substances Convention — that are set out in Part 1 of Schedule 9 — have the force of law in Canada.

Meaning of “receiver”

74.1 For the purposes of Articles 1, 7, 18, 19 and 21 of the Hazardous and Noxious Substances Convention, “receiver” has the meaning assigned by paragraph 4(a) of Article 1 of that Convention.

32. The Act is amended by adding the following in numerical order:

State Party

74.2 For the purposes of the application of the Hazardous and Noxious Substances Convention, Canada is a State Party.

33. The Act is amended by adding the following in numerical order:

Appropriate authority

74.21 For the purposes of Article 12 of the Hazardous and Noxious Substances Convention, the Minister is the appropriate authority for Canada.

Schedule 9 — limits amendment

74.22 The Governor in Council may, by regulation, amend Part 1 of Schedule 9 to implement an amendment — to the limits of liability that are specified in paragraph 1 of Article 9 or paragraph 5 of Article 14 of the Hazardous and Noxious Substances Convention — that is made in accordance with Article 48 of that Convention.

Amendment to Part 2 of Schedule 9

74.23 The Governor in Council may, by regulation, amend Part 2 of Schedule 9 to add or delete a declaration made by Canada under Article 5 of the Hazardous and Noxious Substances Convention.

Liability for damage and related costs

74.24 The liability of the owner of a ship in relation to preventive measures, for the purposes of the Hazardous and Noxious Substances Convention, also includes

(a) the costs and expenses incurred by the Minister of Fisheries and Oceans, by a response organization as defined in section 165 of the Canada Shipping Act, 2001, by any other person in Canada or by any person in a state, other than Canada, that is a party to that Convention in respect of measures taken to prevent, repair, remedy or minimize damage caused by hazardous and noxious substances, including measures taken in anticipation of an incident, to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures; and

(b) in relation to hazardous and noxious substances, the costs and expenses incurred

(i) by the Minister of Fisheries and Oceans in respect of measures taken under paragraph 180(1)(a) of the Canada Shipping Act, 2001, in respect of any monitoring under paragraph 180(1)(b) of that Act or in relation to any direction given under paragraph 180(1)(c) of that Act to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures, or

(ii) by any other person in respect of the measures that they were directed to take or refrain from taking under paragraph 180(1)(c) of the Canada Shipping Act, 2001, to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures.

Admiralty Court’s jurisdiction — limitation fund

74.25 (1) The Admiralty Court has exclusive jurisdiction with respect to any matter relating to the constitution and distribution of a limitation fund under the Hazardous and Noxious Substances Convention.

Right to assert limitation defence

(2) When a claim is made or apprehended against a person in respect of liability that is limited under the Hazardous and Noxious Substances Convention, that person may assert their right to a limitation of liability by constituting a fund as required under that Convention and filing a defence, or by way of action or counterclaim for declaratory relief, in the Admiralty Court.

Stay of proceedings

(3) When a fund is constituted in the Admiralty Court, any other court, where an action asserting limitation of liability under the Hazardous and Noxious Substances Convention has been commenced, shall stay the proceedings and refer all claims under that Convention to the Admiralty Court.

Admiralty Court’s powers

74.26 (1) When a claim is made or apprehended against a person in respect of liability that is limited under the Hazardous and Noxious Substances Convention, the Admiralty Court, on application by that person or any other interested person, may take any steps that it considers appropriate, including

(a) determining the amount of the liability and providing for the constitution and distribution of a fund under that Convention; and

(b) joining interested persons as parties to the proceedings, excluding any claimants who do not make a claim within the time limits set out in Article 37 of that Convention, requiring security from the person claiming limitation of liability or from any other interested person and requiring the payment of any costs.

Admiralty Court may postpone distribution

(2) In providing for the distribution of a fund under paragraph (1)(a) in relation to any liability, the Admiralty Court may, having regard to any claim that may subsequently be established before a court, tribunal or other authority outside Canada in respect of that liability, postpone the distribution of any part of the fund that it considers appropriate.

Procedural matters

(3) The Admiralty Court may

(a) make any rule of procedure that it considers appropriate with respect to proceedings before it under this section; and

(b) determine what form of guarantee it considers to be adequate for the purposes of paragraph 3 of Article 9 of the Hazardous and Noxious Substances Convention.

Public notice

74.27 (1) The person constituting the fund shall, as soon as feasible, give notice of the fund’s constitution in the Canada Gazette and in a newspaper in general circulation in the region where the incident occurs.

Proof of notice

(2) Within 30 days after the fund’s constitution, the person constituting it shall file the public notices in the Admiralty Court.

Court order in case of non-compliance

(3) The Admiralty Court may issue any order that it deems appropriate to remedy the failure of the person to give any of the required public notices or the inadequacy of a notice.

Absence of certificate

74.28 (1) Unless a ship carrying hazardous and noxious substances carries a certificate described in Article 12 of the Hazardous and Noxious Substances Convention issued in accordance with subsection 74.29(1), showing that a contract of insurance or other security satisfying the requirements of that Article is in force, the ship must not

(a) enter or leave a port in Canadian waters or in Canada’s exclusive economic zone or arrive at or leave an offshore terminal in Canadian waters or in Canada’s exclusive economic zone; or

(b) if the ship is registered in Canada, enter or leave a port in any other state, whether or not the state is a party to that Convention, or arrive at or leave an offshore terminal

(i) in the territorial sea or internal waters of any such state, or

(ii) in the exclusive economic zone of any such state or, if the state has not established an exclusive economic zone, in an area beyond and adjacent to the territorial sea of the state, and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured.

Certificate to be produced on request

(2) The master, a crew member or any person on board who is, or appears to be, in charge of the ship shall produce the certificate and give details of it at the request of any authorized officer of the Government of Canada.

By whom certificate to be issued

74.29 (1) The certificate shall be issued

(a) by the Minister, if the ship is registered in Canada;

(b) by or under the authority of the government of the state of registration, if the ship is registered in a state, other than Canada, that is a party to the Hazardous and Noxious Substances Convention; or

(c) by the Minister or by or under the authority of the government of a state, other than Canada, that is a party to the Hazardous and Noxious Substances Convention, if the ship is registered in a state, other than Canada, that is not a party to that Convention.

Issuance of certificate by Minister

(2) On an application to the Minister for a certificate in respect of a ship registered in Canada or registered in a state, other than Canada, that is not a party to the Hazardous and Noxious Substances Convention, the Minister shall issue the certificate to the owner of the ship, if the Minister is satisfied that a contract of insurance or other security satisfying the requirements of Article 12 of that Convention will be in force in respect of the ship throughout the period for which the certificate is issued.

When Minister may refuse certificate

(3) If the Minister believes that the guarantor will be unable to meet the guarantor’s obligations under the contract of insurance or other security referred to in subsection 74.28(1), or that the contract of insurance or other security will not cover the owner’s liability under the Hazardous and Noxious Substances Convention, the Minister may refuse to issue the certificate.

When Minister may revoke certificate

(4) If the Minister believes that the guarantor is no longer able to meet the guarantor’s obligations under the contract of insurance or other security referred to in subsection 74.28(1), or that the contract of insurance or other security no longer covers the owner’s liability under the Hazardous and Noxious Substances Convention, the Minister may revoke the certificate.

34. The Act is amended by adding the following in numerical order:

Meaning of “associated persons”

74.3 For the purposes of the application of the Hazardous and Noxious Substances Convention, if two bodies are affiliated with each other within the meaning of section 2 of the Canada Business Corporations Act, they are deemed to be “associated persons” within the meaning of “associated person” in paragraph 6 of Article 16 of that Convention.

35. The Act is amended by adding the following in numerical order:

Legal capacity of HNS Fund

74.31 For the purposes of the rights and obligations referred to in section 74.32, the HNS Fund has the capacity, rights and obligations of a natural person, and the Director of the HNS Fund is its legal representative.

HNS Fund to be party to legal proceedings

74.32 (1) If a claimant commences an action against the owner of a ship or the owner’s guarantor in respect of a matter referred to in section 74.24 or Article 7 of the Hazardous and Noxious Substances Convention,

(a) the document commencing the proceedings shall be served on the HNS Fund and that Fund is then a party to the proceedings; and

(b) the HNS Fund may appear and take any action that its Director considers appropriate for the proper administration of that Fund.

Method of service on HNS Fund

(2) In addition to any method of service permitted by the rules of the court in which a proceeding is commenced, service of documents on the HNS Fund under paragraph (1)(a) may be effected by registered mail.

36. The Act is amended by adding the following in numerical order:

Meaning of “receiver”

74.4 (1) For the purposes of subsection (2), “receiver” has the meaning assigned by paragraph 4(a) of Article 1 of the Hazardous and Noxious Substances Convention.

Obligation

(2) Receivers shall file information returns with the Minister, in accordance with the regulations, respecting quantities of contributing cargo received, except oils described in paragraph 5(a)(i) of Article 1 of the Hazardous and Noxious Substances Convention.

Regulations

(3) The Governor in Council may make regulations respecting information returns for the purposes of subsection (2).

Communication to Secretary-General of IMO

(4) The Minister shall communicate to the Secretary-General of the International Maritime Organization, in accordance with Article 45 of the Hazardous and Noxious Substances Convention, the information referred to in that Article.

Communication to Director of HNS Fund

(5) The Minister shall communicate to the Director of the HNS Fund, in accordance with Article 21 of the Hazardous and Noxious Substances Convention, the information referred to in that Article except information that relates to oils described in paragraph 5(a)(i) of Article 1 of that Convention.

Minister’s powers

(6) The Minister may, for the purposes of subsection (2), (4) or (5),

(a) at any reasonable time, enter a place in which he or she has reasonable grounds to believe there are any records, books of account, accounts, vouchers or other documents relating to information referred to in Article 21 or 45 of the Hazardous and Noxious Substances Convention;

(b) examine anything at the place and copy or take away for further examination or copying any record, book of account, account, voucher or other document that he or she believes, on reasonable grounds, contains any such information; and

(c) require the owner, occupier or person in charge of the place to give the Minister all reasonable assistance in connection with the examination and to answer all proper questions relating to the examination and, for that purpose, require the owner, occupier or person in charge to attend at the place with the Minister.

No obstruction or false statements

(7) No person shall obstruct or hinder the Minister in the exercise of any powers under subsection (6) or knowingly make a false or misleading statement, either orally or in writing, to the Minister while he or she is exercising those powers.

Warrant required to enter dwelling place

(8) A dwelling place may not be entered under subsection (6) unless it is entered with the occupant’s consent or under the authority of a warrant issued under subsection (9).

Authority to issue warrant

(9) On ex parte application, a justice, as defined in section 2 of the Criminal Code, may issue a warrant authorizing the Minister to enter a dwelling place, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that

(a) the dwelling place is a place referred to in paragraph (6)(a);

(b) entry to the dwelling place is necessary for the purposes of subsection (2), (4) or (5); and

2009, c. 21, s. 11

37. The portion of section 76 of the English version of the Act before paragraph (a) is replaced by the following:

Geographical application

76. This Division applies in respect of actual or anticipated pollution damage that is not covered by Division 1, irrespective of the location of the actual or anticipated discharge of the pollutant and irrespective of the location where any preventive measures are taken,

38. The definition “foreign judgement” in section 80 of the Act is amended by adding “or” at the end of paragraph (d) and by adding the following after paragraph (d):

(e) Hazardous and Noxious Substances Convention within the meaning of subsection 47(1).

2009, c. 21, s. 11

39. (1) Paragraph 90(a) of the Act is replaced by the following:

(a) imposing a fee for the issuance of a certificate under section 56, 74 or 74.29;

2009, c. 21, s. 11

(2) Paragraph 90(c) of the Act is replaced by the following:

(3) Section 90 of the Act is amended by adding the following after paragraph (d):

(d.1) extending the application of the Haz-ardous and Noxious Substances Convention, within the meaning of subsection 47(1), to ships or classes of ships excluded from the application of that Convention and specifying the terms and conditions that are applicable to those ships or classes of ships under Article 4 of that Convention;

(4) Section 90 of the Act is amended by striking out “and” at the end of paragraph (g) and by adding the following after paragraph (g):

(g.1) respecting conditions under which certificates may be issued, refused or revoked for the purposes of subsections 74.29(2) to (4); and

40. (1) The definition “owner” in subsection 91(1) of the Act is amended by striking out “and” at the end of paragraph (b) and by adding the following after paragraph (b):

(b.1) in relation to a ship subject to the Hazardous and Noxious Substances Convention, has the same meaning as in Article 1 of that Convention; and

2009, c. 21, s. 11

(2) Subsection 91(2) of the Act is replaced by the following:

Other definitions

(2) In this Part, “Bunkers Convention”, “Civil Liability Convention”, “Fund Convention”, “Hazardous and Noxious Substances Convention”, “HNS Fund”, “International Fund”, “Supplementary Fund” and “Supplementary Fund Protocol” have the same meaning as in subsection 47(1).

2009, c. 21, s. 11

41. (1) The portion of subsection 101(1) of the Act before paragraph (c) is replaced by the following:

Liability of Ship-source Oil Pollution Fund

101. (1) Subject to the other provisions of this Part, the Ship-source Oil Pollution Fund is liable in relation to oil — except in relation to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention — for the matters referred to in sections 51, 71, 74.24 and 77, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention and Article 7 of the Hazardous and Noxious Substances Convention, if

(a) all reasonable steps have been taken — and those steps have been unsuccessful — to recover payment of compensation from the owner of the ship or from

(i) the International Fund and the Supplementary Fund, in the case of a ship within the meaning of Article I of the Civil Liability Convention, or

(ii) the HNS Fund, in the case of a ship as defined in Article 1 of the Hazardous and Noxious Substances Convention;

(b) the owner of the ship is not liable by reason of any of the defences described in subsection 77(3), Article III of the Civil Liability Convention, Article 3 of the Bunk-ers Convention or Article 7 of the Hazardous and Noxious Substances Convention and, in addition, none of the International Fund, the Supplementary Fund and the HNS Fund is liable;

(2) Paragraph 101(1)(c) of the Act is amended by striking out “and” at the end of subparagraph (i) and by adding the following after subparagraph (i):

(i.1) in the case of a ship as defined in Article 1 of the Hazardous and Noxious Substances Convention, the owner’s maximum liability under that Convention to the extent that the excess is not recoverable from the HNS Fund, and

(3) Subsection 101(1) of the Act is amended by adding the following after paragraph (e):

(e.1) the owner is financially incapable of meeting their obligations under section 74.24 and Article 7 of the Hazardous and Noxious Substances Convention, to the extent that the obligation is not recoverable from the HNS Fund;

2009, c. 21, s. 11

42. (1) Subsection 102(1) of the Act is replaced by the following:

Action by Administrator

102. (1) If there is an occurrence that gives rise to the liability of an owner of a ship in relation to oil — except in relation to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention — under section 51, 71, 74.24 or 77, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention or Article 7 of the Hazardous and Noxious Substances Convention,

(a) the Administrator may, either before or after receiving a claim under section 103, commence an action in rem against the ship that is the subject of the claim, or against any proceeds of sale of the ship that have been paid into court; and

(b) subject to subsection (3), the Administrator is entitled in any such action to claim security in an amount not less than the owner’s maximum aggregate liability determined in accordance with Article V of the Civil Liability Convention, Article 6 of the Convention that is defined in section 24 or Article 9 of the Hazardous and Noxious Substances Convention.

(2) Subsection 102(3) of the Act is amended by striking out “and” at the end of paragraph (a) and by adding the following after paragraph (a):

(a.1) in the case of a ship as defined in Article 1 of the Hazardous and Noxious Substances Convention, a fund has been constituted under subsection 74.25(2); and

2009, c. 21, s. 11

43. (1) Subsection 103(1) of the Act is replaced by the following:

Claims filed with Administrator

103. (1) Except in relation to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention, a person who has suffered loss or damage or incurred costs or expenses referred to in section 51, 71, 74.24 or 77, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention or Article 7 of the Hazardous and Noxious Substances Convention in respect of actual or anticipated oil pollution damage may, in addition to any right the person has against the Ship-source Oil Pollution Fund under section 101, file a claim with the Administrator for the loss, damage, costs or expenses.

2009, c. 21, s. 11

(2) Subsection 103(3) of the Act is replaced by the following:

Exception

(3) Subsection (1) does not apply to a response organization referred to in paragraph 51(a), 71(a), 74.24(a) or 77(1)(b) or to a person in a state other than Canada.

2009, c. 21, s. 11

44. Paragraph 104(a) of the Act is replaced by the following:

(a) on the territory or in the territorial sea or internal waters of a state, other than Canada, that is a party to the Civil Liability Convention, the Bunkers Convention or the Hazard-ous and Noxious Substances Convention; or

2009, c. 21, s. 11

45. (1) Paragraph 106(3)(b) of the Act is replaced by the following:

(b) the claimant is then precluded from pursuing any rights that they may have had, except in relation to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention, against any person in respect of matters referred to in sections 51, 71, 74.24 and 77, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention and Article 7 of the Hazardous and Noxious Substances Convention in relation to the occurrence to which the offer of compensation relates;

2009, c. 21, s. 11

(2) Paragraph 106(3)(d) of the Act is replaced by the following:

(d) the Administrator shall take all reasonable measures to recover the amount of the payment from the owner of the ship, the International Fund, the Supplementary Fund, the HNS Fund or any other person liable and, for that purpose, the Administrator may commence an action in the Administrator’s or the claimant’s name, including a claim against the fund of the owner of a ship established under the Civil Liability Convention or the Hazardous and Noxious Substances Convention and may enforce any security provided to or enforceable by the claimant.

2009, c. 21, s. 11

46. The portion of subsection 109(1) of the Act before paragraph (a) is replaced by the following:

Proceedings against owner of ship

109. (1) Except in the case of proceedings relating to damage as defined in paragraph 6(a) of Article 1 of the Hazardous and Noxious Substances Convention, if a claimant commences proceedings against the owner of a ship or the owner’s guarantor in respect of a matter relating to oil and referred to in section 51, 71, 74.24 or 77, Article III of the Civil Liability Convention, Article 3 of the Bunkers Convention or Article 7 of the Hazardous and Noxious Substances Convention,

2009, c. 21, s. 11

47. The heading before section 112 of the Act is replaced by the following:

Explanatory Notes

Marine and Aviation War Risks Act

Clause 3: Existing text of the long title:

An Act respecting marine and aviation war risks insurance and reinsurance agreements

Clause 4: Existing text of section 1:

1. This Act may be cited as the Marine and Aviation War Risks Act.

Clause 5: (1) and (2) Existing text of the definitions:

“aircraft” means an aircraft that is

(a) registered in Canada pursuant to regulations made under the Aeronautics Act, or

(b) registered in any other country other than Canada designated by the Governor in Council;

“Account” means the Marine and Aviation War Risks Insurance Account established under section 5;

Clause 6: Existing text of section 3:

3. The Minister, for the purpose of securing that ships and aircraft are not laid up and that commerce is not interrupted by reason of lack of insurance facilities, may enter into an agreement, in such form and containing such terms and conditions as are prescribed by the regulations or otherwise approved by the Governor in Council, with any person or association of persons for the insurance or reinsurance by him against any or all war risks of

(a) aircraft,

(b) vessels, or

Clause 7: Relevant portion of section 4:

4. The Governor in Council may make regulations for carrying the purposes and provisions of this Act into effect and, without restricting the generality of the foregoing, may make regulations

...

(c) respecting the designation of countries of registry for the purposes of paragraph (b) of the definition “aircraft” in section 2 and paragraph (c) of the definition “vessel” in section 2.

Clause 8: Relevant portion of subsection 5(1):

5. (1) There shall be established in the Consolidated Revenue Fund an account to be known as the Marine and Aviation War Risks Insurance Account, hereinafter referred to as the “Account”, to which shall be credited

Aeronautics Act

Clause 10: (1) Existing text of the definition:

“Minister” means

(a) subject to paragraph (b), the Minister of Transport or such other Minister as is designated by the Governor in Council as the Minister for the purposes of this Act, and

(b) with respect to any matter relating to defence, including any matter relating to military personnel or a military aircraft, military aerodrome or military facility of Canada or a foreign state, the Minister of National Defence or, under the direction of the Minister of National Defence, the Chief of the Defence Staff appointed under the National Defence Act;

(2) Existing text of subsection 3(2):

(2) Notwithstanding the definition “Minister” in subsection (1), “Minister”, in relation to any matter referred to in paragraph 4.2(n), 4.9(p), (q) or (r), section 6.3 or paragraph 8.7(1)(b), means the Minister of National Defence.

Clause 11: (1) and (2) Relevant portion of section 4.2:

4.2 The Minister is responsible for the development and regulation of aeronautics and the supervision of all matters connected with aeronautics and, in the discharge of those responsibilities, the Minister may

...

(n) investigate matters concerning aviation safety; and

(3) New.

Clause 12: New.

Clause 13: New.

Clause 14: New.

Clause 15: Existing text of the heading and section 6.3:

Boards of Inquiry

6.3 (1) The Minister may establish a board of inquiry to inquire, subject to the Canadian Transportation Accident Investigation and Safety Board Act, into the circumstances of any accident involving an aircraft, any alleged contravention under this Part or any incident involving an aircraft that, in the opinion of the Minister, endangered the safety of persons, and may designate the persons who are to be members of that board.

(2) Every person designated by the Minister as a member of a board of inquiry has and may exercise all the powers of a person appointed as a commissioner under Part I of the Inquiries Act and the powers that may be conferred on a commissioner under section 11 of that Act.

(3) Every witness who attends and gives evidence before a board of inquiry is entitled to be paid reasonable travel and living expenses incurred by the witness in so attending and giving evidence and the witness fees prescribed in the tariff of fees in use in the superior court of the province in which the witness’s evidence is given.

(4) A board of inquiry shall send a full report of the inquiry conducted by it to the Minister within such time as the Minister may require.

Clause 16: Existing text of section 6.4:

6.4 The provisions of sections 28, 29 and 30 of the Canadian Transportation Accident Investigation and Safety Board Act relating to on-board recordings, communication records and statements, within the meaning of those respective sections, apply, with such modifications as the circumstances require, to and in respect of a board of inquiry and an inquiry conducted by such a board under section 6.3 and any investigation by the Minister concerning aviation safety.

Clause 17: Existing text of section 6.7:

6.7 Sections 6.71 to 7.21 do not apply to a member of the Canadian Armed Forces acting in that capacity or to any other person in relation to a Canadian aviation document issued in respect of a military aircraft, military aerodrome or military facility.

Clause 18: New.

Clause 19: New.

Clause 20: (1) Relevant portion of subsection 27(1):

27. (1) In any action or proceeding under this Act, any document purporting to be certified by the Minister, the Secretary of the Department of Transport or the Secretary of the Canadian Transportation Agency to be a true copy of a document made, given or issued under this Act is, without proof of the signature or of the official character of the person appearing to have signed the document, evidence

(2) and (3) Relevant portion of subsection 27(2):

(2) In any action or proceeding under this Act, any certificate purporting to be signed by the Minister, the Secretary of the Department of Transport or the Secretary of the Canadian Transportation Agency stating that a document, authorization or exemption under this Act

...

is evidence of the facts stated therein, without proof of the signature or of the official character of the person appearing to have signed the certificate and without further proof thereof.

National Defence Act

Clause 22: New.

Canadian Transportation Accident Investigation and Safety Board Act

Clause 23: Existing text of subsection 18(4):

(4) Where a transportation occurrence referred to in subsection (3) is being investigated by the Board and by the Department of National Defence, the Canadian Forces or a visiting force, the Board and the Minister of National Defence shall take all reasonable measures to ensure that the investigations are coordinated.

Canada Marine Act

Clause 27: Existing text of subsection 14(2.2):

(2.2) A director’s appointment takes effect on the day on which notice of the appointment is received by the port authority.

Marine Liability Act

Clause 28: Existing text of the heading:

LIABILITY AND COMPENSATION FOR POLLUTION

Clause 29: (1) Existing text of the definition:

“owner”

(a) in relation to the Civil Liability Convention, has the same meaning as in Article I of that Convention;

(b) in relation to the Fund Convention, has the same meaning as in Article I of the Civil Liability Convention and as shipowner within the meaning of the Fund Convention;

(c) in relation to the Supplementary Fund Protocol, has the same meaning as in Article I of the Civil Liability Convention; and

(d) in relation to the Bunkers Convention, has the same meaning as the definition “Shipowner” in Article 1 of that Convention.

(2) New.

(3) Relevant portion of subsection 47(2):

(2) For the purposes of this Division and unless otherwise provided, words and expressions used in this Division have the same meaning as in the following applicable conventions:

(4) Existing text of subsection 47(3):

(3) In the event of an inconsistency between this section and sections 48 to 74 and 79 to 90 and the Civil Liability Convention, the Fund Convention, the Supplementary Fund Protocol or the Bunkers Convention, those sections prevail to the extent of the inconsistency.

Clause 30: Existing text of subsection 54(2):

(2) Within 30 days after the fund’s constitution, the person constituting it shall file the public notices in the Admiralty Court.

Clause 31: New.

Clause 32: New.

Clause 33: New.

Clause 34: New.

Clause 35: New.

Clause 36: New.

Clause 37: Relevant portion of section 76:

76. This Division applies in respect of actual or anticipated pollution damage, except for pollution damage covered by Division 1, irrespective of the location of the actual or anticipated discharge of the pollutant and irrespective of the location where any preventive measures are taken,

Clause 38: New.

Clause 39: (1) and (2) Relevant portion of section 90:

90. The Governor in Council may make regulations

(a) imposing a fee for the issuance of a certificate under section 56 or 74;

...

(3) and (4) New.

Clause 40: (1) Existing text of the definition:

“owner”

(a) in relation to a ship subject to the Civil Liability Convention, has the same meaning as in Article I of that Convention;

(b) in relation to a ship subject to the Bunkers Convention, has the same meaning as the definition “Shipowner” in Article 1 of that Convention; and

(c) in relation to any other ship, means the person who has for the time being, either by law or by contract, the rights of the owner of the ship with respect to its possession and use.

(2) Existing text of subsection 91(2):

(2) In this Part, “Bunkers Convention”, “Civil Liability Convention”, “Fund Convention”, “International Fund”, “Supplementary Fund” and “Supplementary Fund Protocol” have the same meaning as in subsection 47(1).

Clause 41: (1) Relevant portion of subsection 101(1):

101. (1) Subject to the other provisions of this Part, the Ship-source Oil Pollution Fund is liable for the matters referred to in sections 51, 71 and 77 in relation to oil, Article III of the Civil Liability Convention and Article 3 of the Bunkers Convention, if

(a) all reasonable steps have been taken to recover payment of compensation from the owner of the ship or, in the case of a ship within the meaning of Article I of the Civil Liability Convention, from the International Fund and the Supplementary Fund, and those steps have been unsuccessful;

(b) the owner of a ship is not liable by reason of any of the defences described in subsection 77(3), Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention and neither the International Fund nor the Supplementary Fund are liable;

(2) and (3) New.

Clause 42: (1) Existing text of subsection 102(1):

102. (1) If there is an occurrence that gives rise to the liability of an owner of a ship under section 51, 71 or 77, Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention,

(b) subject to subsection (3), the Administrator is entitled in any such action to claim security in an amount not less than the owner’s maximum aggregate liability determined in accordance with section 71 or 77, or Article V of the Civil Liability Convention.

(2) Relevant portion of subsection 102(3):

(3) The Administrator is not entitled to claim security under subsection (1) if

Clause 43: (1) Existing text of subsection 103(1):

103. (1) In addition to any right against the Ship-source Oil Pollution Fund under section 101, a person who has suffered loss or damage or incurred costs or expenses referred to in section 51, 71 or 77, Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention in respect of actual or anticipated oil pollution damage may file a claim with the Administrator for the loss, damage, costs or expenses.

(2) Existing text of subsection 103(3):

(3) Subsection (1) does not apply to a response organization referred to in paragraph 51(a), 71(a) or 77(1)(b) or a person in a state other than Canada.

Clause 44: Relevant portion of section 104:

104. Sections 101 and 103 do not apply in respect of actual or anticipated oil pollution damage

(a) on the territory or in the territorial sea or internal waters of a state, other than Canada, that is a party to the Civil Liability Convention or the Bunkers Convention; or

Clause 45: (1) and (2) Relevant portion of subsection 106(3):

(3) If a claimant accepts the offer of compensation from the Administrator,

...

(b) the claimant is then precluded from pursuing any rights that they may have had against any person in respect of matters referred to in sections 51, 71 and 77, Article III of the Civil Liability Convention and Article 3 of the Bunkers Convention in relation to the occurrence to which the offer of compensation relates;

...

(d) the Administrator shall take all reasonable measures to recover the amount of the payment from the owner of the ship, the International Fund, the Supplementary Fund or any other person liable and, for that purpose, the Administrator may commence an action in the Administrator’s or the claimant’s name, including a claim against the fund of the owner of a ship established under the Civil Liability Convention and may enforce any security provided to or enforceable by the claimant.

Clause 46: Relevant portion of subsection 109(1):

109. (1) If a claimant commences proceedings against the owner of a ship or the owner’s guarantor in respect of a matter referred to in section 51, 71 or 77, Article III of the Civil Liability Convention or Article 3 of the Bunkers Convention, except in the case of proceedings based on paragraph 77(1)(c) commenced by the Minister of Fisheries and Oceans in respect of a pollutant other than oil,

Clause 47: Existing text of the heading:

Levies To Be Paid to the Ship-source Oil Pollution Fund, the International Fund and the Supplementary Fund