PART 3Pipelines (continued)
Construction Despite Presence of Utilities or Navigable Waters (continued)
Marginal note:Existing terms and conditions
222 (1) Terms and conditions in respect of a pipeline that were, at any time before July 3, 2013, imposed under section 108 of the National Energy Board Act, are considered to be conditions set out in the certificate issued, or order made under section 214, as the case may be, in respect of the pipeline.
Marginal note:Construction without leave
(2) If, at any time before July 3, 2013, the Minister of Transport or the National Energy Board had provided, under section 108 of the National Energy Board Act, that leave under that section was not necessary because the pipeline was to be constructed in accordance with certain orders, regulations, plans and specifications, a company must not construct the pipeline other than in accordance with those orders, regulations, plans and specifications or as specified by the Commission.
Marginal note:Offence and punishment
223 (1) Every person who contravenes subsection 217(1), section 218 or subsection 222(2) is guilty of an offence and is liable
(a) on conviction on indictment to a fine of not more than $1,000,000 or to imprisonment for a term of not more than five years, or to both; or
(b) on summary conviction to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both.
Marginal note:Application of subsections 379(2) to (6)
(2) Subsections 379(2) to (6) apply, with any modifications that the circumstances require, in respect of an offence under this section.
Marginal note:If pipeline affixed to any real property or immovables
224 (1) Despite the other provisions of this Act, or any general or Special Act or law, if any section or part of a company’s pipeline passes on, over, along or under a utility, as defined in subsection 217(6) — or passes in, on, over, under, through or across a navigable water — and that section or part of the pipeline has been affixed to any real property or immovable in any of the circumstances referred to in subsection (2),
(a) that section or part of the pipeline remains subject to the rights of the company and remains the property of the company as fully as it was before being affixed and does not become part of the real property or immovable of any person other than the company unless otherwise agreed by the company in writing and unless notice of the agreement in writing has been filed with the Regulator; and
(b) subject to the other provisions of this Act, the company may create a lien, mortgage, charge or other security, or the company may constitute a hypothec, on that section or part of the pipeline.
(2) The following are the circumstances for the purposes of subsection (1):
(a) leave has been obtained under subsection 217(2) or (5) in respect of the pipeline;
(b) the certificate issued, or the order made under section 214, in respect of the pipeline contains a condition relating to the utility;
(c) the pipeline has been constructed in circumstances specified in an order or regulation made under subsection 217(4);
(d) a certificate has been issued, or an order has been made under section 214, in respect of the pipeline and the pipeline passes in, on, over, under, through or across a navigable water; and
(e) leave has been obtained under section 108 of the National Energy Board Act in respect of the pipeline at any time before July 3, 2013.
Traffic, Tolls and Tariffs
Marginal note:Definition of tariff
225 In sections 226 to 240, tariff means a schedule of tolls, conditions, classifications, practices or rules and regulations applicable to the provision of a service by a company, and includes rules respecting the calculation of tolls.
226 The Commission may make orders with respect to all matters relating to traffic, tolls or tariffs.
Filing of Tariff
Marginal note:Tariff to be filed
227 A company must file each tariff it makes and any amendments made to a tariff, with the Regulator.
Marginal note:Commencement of tariff
228 If a company files a tariff with the Regulator and the company proposes to charge a toll referred to in paragraph (b) of the definition toll in section 2, the Commission may establish the day on which the tariff is to come into effect, and the company is prohibited from charging the toll before that day.
Marginal note:Authorized tolls
229 (1) A company is prohibited from charging a toll unless the toll is
(a) specified in a tariff that is filed with the Regulator and is in effect; or
(b) approved by an order of the Commission.
Marginal note:Deemed tariff
(2) If the oil, gas or other commodity transmitted by a company through its pipeline is the property of the company, the company must, if requested by the Regulator, file copies of any contract it enters into for the sale of the oil, gas or commodity, or any amendments it makes to such a contract, with the Regulator and those copies are deemed, for the purpose of sections 225 to 240, to be a tariff filed in accordance with subsection (1).
Just and Reasonable Tolls
230 All tolls must be just and reasonable, and must always, under substantially similar circumstances and conditions with respect to all traffic of the same description carried over the same route, be charged equally to all persons at the same rate.
Marginal note:Determination — Commission
231 The Commission may determine
(a) whether traffic is or has been carried under substantially similar circumstances and conditions for the purposes of section 230;
(b) whether a company has complied with the provisions of section 230; and
(c) whether there has been unjust discrimination for the purposes of section 235.
Marginal note:Interim tolls
232 If the Commission has made an interim order authorizing a company to charge tolls until a specified time or the happening of a specified event, the Commission may, in any subsequent order, direct the company
(a) to refund, in the manner that the Commission considers appropriate, the part of the tolls charged under the interim order that is in excess of the tolls determined by the Commission to be just and reasonable, together with interest on the amount to be refunded; or
(b) to recover in its tolls, in the manner that the Commission considers appropriate, the amount by which the tolls determined by the Commission to be just and reasonable exceed the tolls charged under the interim order, together with interest on the amount to be recovered.
Disallowance or Suspension of Tariff
233 The Commission may disallow any tariff or any portion of a tariff that it considers to be contrary to this Act or to any order of the Commission, and may require a company to substitute in its place, within a prescribed time, a tariff that the Commission considers satisfactory, or may prescribe other tariffs in place of the tariff or the portion of the tariff that is disallowed.
234 The Commission may suspend the application of any tariff or any portion of a tariff before or after the tariff goes into effect.
Marginal note:No unjust discrimination
235 A company must not make any unjust discrimination in tolls, service or facilities against any person or locality.
Marginal note:Burden of proof
236 If it is shown that a company makes any discrimination in tolls, service or facilities against any person or locality, the burden of proving that the discrimination is not unjust lies on the company.
237 (1) A company or shipper, or an officer, employee or agent or mandatary of a company or shipper, is guilty of an offence punishable on summary conviction if they
(a) offer, grant, give, solicit, accept or receive a rebate, concession or discrimination that allows a person to obtain transmission of hydrocarbons or any other commodity by a company at a rate less than that named in the tariffs then in effect; or
(b) knowingly are party or privy to a false billing, false classification, false report or other device that has the effect set out in paragraph (a).
Marginal note:Due diligence
(2) A person is not to be found guilty of an offence under paragraph (1)(a) if they establish that they exercised due diligence to prevent the commission of the offence.
(3) No prosecution may be instituted for an offence under this section without leave of the Commission.
Contracts Limiting Liabilities
Marginal note:General rule
238 (1) Except as provided in this section, no contract, condition or notice made or given by a company limiting its liability in respect of the transmission of hydrocarbons or any other commodity relieves the company from its liability, unless that class of contract, condition or notice is included as a condition of its tariffs that are filed with the Regulator or has been first approved by order of the Commission or authorized by regulation.
Marginal note:Limitation of liability
(2) The Commission may determine the extent to which the liability of a company may be limited as provided in this section.
(3) The Commission may prescribe the conditions under which hydrocarbons or any other commodity may be transmitted by a company.
Transmission by Pipeline
Marginal note:Duty — company
239 (1) Subject to any regulations that the Commission may prescribe and any exemptions or conditions it may impose, a company operating a pipeline for the transmission of oil must, according to its powers, without delay and with due care and diligence, receive, transport and deliver all oil offered for transmission by means of its pipeline.
Marginal note:Commission’s orders
(2) The Commission may, by order, on any conditions that it specifies in the order, require a company operating a pipeline for the transmission of gas or a commodity other than oil to, according to its powers, receive, transport and deliver such a commodity offered for transmission by means of its pipeline.
Marginal note:Extension of facilities
(3) If the Commission considers it necessary or in the public interest and it finds that no undue burden will be placed on the company, it may require a company operating a pipeline for the transmission of oil, gas or any other commodity to provide adequate and suitable facilities for
(a) receiving, transmitting and delivering the oil, gas or other commodity offered for transmission by means of its pipeline;
(b) storing the oil, gas or other commodity; and
(c) joining its pipeline with other facilities for the transmission of oil, gas or any other commodity.
Transmission and Sale of Gas
Marginal note:Extension or improvement
240 (1) If the Commission considers it necessary or in the public interest and it finds that no undue burden will be placed on the company, it may direct a company operating a pipeline for the transmission of gas to extend or improve its facilities to facilitate joining its pipeline with the facilities of, and sell gas to, any person or municipality engaged or legally authorized to engage in the local distribution of gas to the public, and for those purposes to construct branch lines to communities immediately adjacent to its pipeline.
(2) Subsection (1) does not empower the Commission to compel a company to sell gas to additional customers if to do so would impair its ability to render adequate service to its existing customers.
Marginal note:Deemed toll
(3) If the gas transmitted by a company through its pipeline is the property of the company, the differential between the cost to the company of the gas at the point where it enters its pipeline and the amount for which the gas is sold by the company is, for the purposes of sections 225 to 240, deemed to be a toll charged by the company to the purchaser for the transmission of that gas.
241 (1) A company must not abandon a pipeline unless the Commission has, by order, granted it leave to do so.
Marginal note:Notice to owners
(2) If a company has submitted to the Regulator an application to abandon a pipeline, the company must, in the form and manner specified by the Commission,
(a) serve a notice on all owners of lands through which the pipeline passes, insofar as they can be ascertained; and
(b) publish a notice in at least one issue of a publication, if any, in general circulation within the area in which the lands are situated.
Marginal note:Public hearing
(3) If a written statement of opposition to the abandonment is filed with the Regulator or if a person requests in writing that a hearing be held in respect of the application for leave to abandon the operation of a pipeline, the Commission must order that a public hearing be conducted in respect of the application unless
(a) the person who filed the written statement or who requested the hearing files a notice of withdrawal with the Regulator; or
(b) the Commission considers that the opposition or request is frivolous or vexatious or is not made in good faith.
(4) The Commission may, on granting leave to abandon a pipeline, impose any conditions that it considers appropriate.
Marginal note:Liability of company
(5) A company that has been granted leave to abandon a pipeline continues to be liable for the abandoned pipeline under this Act.
Marginal note:Costs and expenses related to abandonment
242 (1) The Commission may order a company to take any measure, including maintaining funds or security, that the Commission considers necessary to ensure that the company has the ability to pay for the abandonment of its pipeline and to pay any costs and expenses related to its abandoned pipeline.
Marginal note:Funds or security
(2) If the Commission orders a company to maintain funds or security, the Commission may
(a) order the company to use all or a portion of the funds or security to pay for the abandonment of the pipeline or to pay the costs and expenses related to the abandoned pipeline;
(b) authorize a third party or an employee of the Regulator — or class of employees of the Regulator — to use all or a portion of the funds or security to pay for that abandonment or to pay those costs and expenses;
(c) realize all or a portion of the security in order to enable a third party or the Regulator to pay for that abandonment or to pay those costs and expenses; and
(d) order that any surplus referred to in subsection 246(2) be paid into the Consolidated Revenue Fund and credited to the Orphan Pipelines Account.
Marginal note:Orphan pipelines
243 (1) A designated officer may, by order, designate a pipeline as an orphan pipeline if the directors or officers of the company that holds the certificate in respect of the pipeline cannot be located or if that company is unknown, insolvent, bankrupt, subject to a receivership, dissolved or cannot be located.
Marginal note:Holder of certificate
(2) For the purposes of subsection (1), a person that is named in an order made under section 214 in respect of the pipeline, or that is authorized under a Special Act to operate the pipeline, is considered to be the company that holds the certificate.
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