Recovery of Costs and Expenses
22.(1) Her Majesty in right of Canada may recover the costs and expenses reasonably incurred while taking any measures under Section 17 or 19.
(2) The costs and expenses may be recovered jointly and severally from any persons who, through their fault or negligence or that of others for whom they are by law responsible, caused or contributed to the circumstances necessitating the measures.
(3) For the purposes of proceedings under this section, a defendant engaged in an activity in relation to which this Act applies shall be presumed to have been at fault or negligent unless it is established, on a balance of probabilities, that the defendant and any others for whom the defendant is by law responsible took all reasonable measures to comply with this Act and the regulations.
(4) All claims under this section may be sued for and recovered by Her Majesty in right of Canada with costs in proceedings brought or taken for the claims in the name of Her Majesty in right of Canada in any court of competent jurisdiction.
(5) This section does not limit or restrict any right of recourse or indemnity that any person who is liable under subsection (1) may have against any other person.
(6) No civil remedy for any act or omission is suspended or affected by reason only that the act or omission is an offence under this Act or gives rise to liability under this section.
(7) Nothing in this section relieves an operator, as defined in Section 2 of the Nuclear Liability Act, from any duty or liability imposed on the operator under that Act.
(8) Proceedings in respect of a claim under this section may be instituted no later than two years after the day the events in respect of which the proceedings are instituted occurred or became evident.
BEHIND THE WORDS
Subsection 22(3) is presumptuous since it assumes that the government would have acted on its own under Section 17 or 19 only after having provided direction to the extent normally possible given the circumstances, and not having received a satisfactory reaction. Full and complete documentation of the circumstances and any actions taken is required. It is recognized that in some instances sufficient time may not be available for oral notice, registered letter, serving of documents, etc., establishing that the government would act to protect public safety and subsequently recover expenses from those obliged to act who refrained from taking action. Excellent documentation of this must be established.
Subsection 22(3), which presumes that certain expenses must be paid even though the time period to provide notice to a defendant could be greatly compressed, is required to ensure the federal government does not automatically accept any costs of response measures that should be borne by a consignor, carrier, importer, etc. Note that if non-compliance is involved, which need not always be the case, Section 34 provides another method a court may use to provide for the payment of government and other person's costs if a conviction is obtained.
The Treasury Board policy on emergency contracting applies only in cases of a bona fide emergency which is defined in the policy's terms as a situation that may reasonably be expected to result in unacceptable delays to essential services, or to pose a serious threat to health, safety, or property.
a) it is impossible to contact a Surface Group Regional Director, the Director General, TDG Directorate, or the Assistant Deputy Minister, Safety and Security;
b) no delays are possible with respect to contracting for services, or a part of required services; and
c) the services cannot be acquired as the result of a direction (the appropriate person is not subject to a direction, or refuses),
the inspector is to contract for the minimum service needed through the voice recording devices of CANUTEC. Caution is advised. If it is clearly a case of setting aside a Treasury Board Policy to protect public safety in a serious emergency, this is to take place.
If the accident occurs outside of business hours and it is impossible to contact, for example, the consignor, Section 22 would still apply. The argument would be that the consignor knows his/her product, that accidents may happen and if not contactable he/she may have actions taken on his/her behalf that he/she will have to pay for.
Sections 17 &19 - Expenses can be incurred by the government
Section 34 - Provides an alternate means of recovering expenses in the event of a conviction
COURT DECISIONS OF INTEREST
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