Evidence of meeting #42 for Natural Resources in the 40th Parliament, 2nd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was accident.
A recording is available from Parliament.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
It's interesting. They have to decide it in tort law, under which this doesn't exist.
Senior Legislative Counsel, Advisory and Development Services Section, Department of Justice
But they would apply the same logic to proximity and causation and all the things they normally decide--the things that judges do.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
So when the department discussed these sections on potential compensation for workers, this discussion happened.... This is all about risk exposure to the taxpayer ultimately as well as the operator, right? A liability act by definition tries to somewhat limit where the liabilities will extend for government. This liability is included. I want to be absolutely crystal clear on this. Okay.
I have a question about subclause 16(2). I will read it:
If a nuclear incident occurs at a nuclear installation that generates electricity, the costs resulting from a failure of the installation to provide electricity are not compensable under subsection (1).
I know this is a serious concern in Ontario when there have been shutdowns of certain nuclear plants. Can you explain this section to me and the reason it's there? Is it for Ontario or any province operating a nuclear reactor? If a nuclear accident happens, the province has to go out and buy spot-market power to fill the void. The operator is not liable for that expense. Is that right?
Director, Uranium and Radioactive Waste Division, Electricity Resources Branch, Department of Natural Resources
That is correct. In the case of a reactor, if a reactor goes down, the power losses associated with that would not be compensable under the legislation. There would be no compensation.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
There would be no compensation at all. So oftentimes, and again I'm trying to get back to the notion of negligence....
The cascading power loss that started in the U.S.--I'm trying to remember the year. Was it 2004? It came across the border and we lost quite a bit. In that case, because there was a point of proven negligence south of the border--I don't think Canadians got in on the action at all--they sought compensation and were awarded compensation for negligence that was proved on the part of the provider of electricity. They said, you were negligent, and because of that power loss I lost all the food in my restaurant's fridge and my business had to go out of business for two days.
Under this law that would not be allowed--even in the case of a proven point of negligence, because this doesn't exist under any kind of tort law.
Director, Uranium and Radioactive Waste Division, Electricity Resources Branch, Department of Natural Resources
That's right. That would not be compensated.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
I want to see if this affects the regime right now. A nuclear power operator in Canada makes a mistake and goes offline. Has there been any compensation sought up to this point from any of the generators?
November 25th, 2009 / 4:40 p.m.
Director, Uranium and Radioactive Waste Division, Electricity Resources Branch, Department of Natural Resources
So it's not an accident? The reactor is shut down?
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Give me either scenario. Right now under Canada's law, if there is an accident and there's power loss, can compensation be sought? In an event where it's not an accident--they screwed up, something went wrong, but it's not an accident, the thing is just not working--can the utilities seek compensation from the...?
Director, Uranium and Radioactive Waste Division, Electricity Resources Branch, Department of Natural Resources
Do you mean can the homeowner or the purchaser of power seek compensation?
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
I want to talk about the utility right now. A utility is buying power from Darlington and Darlington is not providing the power under a contract, which is what they established under. Can they seek any compensation?
I wish I could call our friends from the nuclear industry forward. They could answer it in a second.
Senior Legislative Counsel, Advisory and Development Services Section, Department of Justice
What you're asking is if there is an interruption in power supply from a nuclear plant, can they seek compensation under this act if it's not a nuclear incident.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
I am asking prior to this legislation taking place.... I want to know if subclause 16(2) changes anything fundamental about the way Canadians receive their power and the way utilities receive power from the nuclear industry. Does subclause 16(2) change much?
Senior Legislative Counsel, Advisory and Development Services Section, Department of Justice
I'm not sure if I understand. I'll explain what I understand the question to be. What you're asking is prior to this legislation, or under the existing Nuclear Liability Act, if there were an interruption in power from the nuclear power plant, and there is a contract, if somebody wants to sue under the contract, then you're out of the scope of the act. If it's not a nuclear incident, you are entirely out of the scope of the act, and tort law, contract law, applies.
Senior Legislative Counsel, Advisory and Development Services Section, Department of Justice
That's the current situation, and that's the situation under this proposed act as well. This legislation only kicks in when there is an actual nuclear incident. Other than that....
So subsection 16(2) then has no impact. This entire bill has no effect on existing contractual obligations outside of a nuclear incident.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Right. What I want to understand, and this is perhaps my point.... If a nuclear power plant is unable for whatever reasons to provide power, if something goes wrong, if they shut down--we've had this experience in Canada before where a refurbishment takes too long or they go into an early shutdown or whatever happens--damages can be sought now under the contract they have with the power provider. I'm not talking about accidents. I'm talking about just something normal. If the provider were to call it a nuclear incident instead of just something going offline, do they not avoid potential damages? I want to make sure this doesn't create a loophole for the nuclear industry to say, well, you can't come back on us in the contract that we have with you because what happened last Saturday wasn't a mistake. It's what we are going to call a nuclear incident.
Senior Legislative Counsel, Advisory and Development Services Section, Department of Justice
Whether something is or is not a nuclear incident is not up to an operator to define. It's a question of fact.
Senior Legislative Counsel, Advisory and Development Services Section, Department of Justice
The legislation explains what a nuclear incident is, and if there were a dispute about it, it would be up to a court of law to determine whether there actually was a nuclear incident.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
If a company tried to call something a nuclear incident to avoid having to pay any compensation, they would have to go in front of a Canadian court--it wouldn't be that tribunal we talked about before. It would not be to prove subclause 16(2) but to prove that Bill C-20 now applies to their situation, and if they can prove it under the definition of what a nuclear incident is under this bill, then they would be forgiven any damages that they would normally have to pay under a contract. That is where that would get proven.
I'm trying to find out who would make that decision.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
It would be a court. It wouldn't be the government. It wouldn't be CNSC to say it was a nuclear incident, and it certainly wouldn't be up to the operator alone.
Senior Legislative Counsel, Advisory and Development Services Section, Department of Justice
Assuming there were a dispute, typically if there is a dispute, that is settled in court.
