Natural Resources Committee on Nov. 25th, 2009

[Brenda MacKenzie]

Subclause 16(2) just eliminates the argument altogether. We're just not going to cover that kind of damage. In subclause 16(1), for example, and throughout, when we're talking about types of compensable damage, a court would look at remoteness in deciding whether it was something that was worthy of compensation, just as they do in an ordinary tort law case.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I see.

I want to get to the rationale, which I think is what we were approaching with Mr. Regan's question, for subclause 16(2). It isn't so much that the government doesn't acknowledge that there can be damages resulting from the loss of power to individuals or businesses; in a sense you've triaged the situation and given priority to those who are defined earlier as being directly, physically impacted by a nuclear accident, as opposed to those who have simply lost business because the power didn't show up.

[Brenda MacKenzie]

That is correct.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Okay. I don't suspect it's about to happen, but if the committee did not accept subclause 16(2), and if the rationale for subclause 16(2) is to focus the funds towards people who are physically hurt--

[Brenda MacKenzie]

Directly affected.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

--directly affected, thank you--in the definitions that we've just seen, then I would assume that without subclause 16(2), the government, upon review of the bill, would have to alter the $650 million, simply because the bill would be opened up to damages to those who have also lost power. No?

Oh, I see; Mr. Regan said it would just be spread more thinly, but the courts don't work this way on this bill.

Let's say that with subclause 16(2) the claim came out to be $1 billion, and without subclause 16(2) the claim came out to be $2 billion; it wouldn't necessarily matter to the provider of nuclear energy, simply because their cutoff is $650 million no matter what. Could I be looking at subclause 16(2) as something that's meant to...?

You said that subclause 16(2) exists to be able to provide money more directly to people who are directly impacted. That's a priority over folks who are impacted through the loss of power when their business goes down and they lose money or something else happens. The reason for this section is then to say, if it weren't here.... The judge is not going to sit back and say that since we also have to compensate the people who lost power, we're going to give less money to you people who are physically ill or something. I don't think that's foreseen. The judges are going to compensate what they think is reasonable to people who are directly impacted.

[Brenda MacKenzie]

Yes.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

So is the spread-more-thinly argument actually true with respect to subclause 16(2)?

[Dave McCauley]

Under the legislation, there are a variety of ways that.... Excuse me, I was going on to the tribunal.

[The Chair, Conservative, Leon Benoit]

Ms. MacKenzie, go ahead.

[Brenda MacKenzie]

If there is no tribunal and if we're just going to an ordinary court to resolve disputes, which might happen, then it's true; it's first come, first served. Therefore, if the first guy who showed up was somebody who had a claim for economic loss because of an electricity outage, then it's true that the $650 million could perhaps--perhaps--get taken up. This ensures that in that event, the money is preserved for people who are more directly affected. Of course we will see later, when we get to other provisions of the bill, that there are ways the tribunal can manage such a situation, but that's later.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Okay. And I want to get to that court versus tribunal scenario because I think it's important, but I'll wait until it's there.

I'm confused. In the scenario you just described, let's say somebody shows up with.... I'm imagining subclause 16(2) not being here. If someone shows up with compensable damages, or a whole bunch of people show up, they eat up $500 million in damages right off the bat. The next person in line, or the next group of people in line, let's say, were more directly impacted and that went another $500 million. A judge has this law in front of him and knows there's more money to get. And Parliament can provide more money. A judge isn't going to say, “Well, for all you folks coming next in line, there's only $150 million. We're just going have to figure out the rest.”

Are judges limited under subclause 16(2) or under any part of this bill—I don't think they are—to only find $650 million worth of damages? That's not imagined. Correct?

[Brenda MacKenzie]

No.

If you're outside of a tribunal context, when people are going to court, the judge isn't doing that weighing that this claim is more worthy than that claim. The judge is just handling.... Whoever the judge is and in whatever court he is, he'll just deal with it on its own merits without regard to anybody else.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

That's right, without regard for the ultimate cost, etc.

[Brenda MacKenzie]

Correct.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Subclause 16(2) states that anybody who is impacted because of the loss of electricity can't be one of those people in line. Full stop.

And I didn't quite understand your answer to Mr. Regan's question in terms of other sources of power. If a hydroelectric dam screws up and causes a whole bunch of power losses, or a coal-fired plant screws up, under regulatory law, I would assume they would end up in court if someone could prove damage. Is that true?

[Brenda MacKenzie]

Presumably. I'm outside the scope of the bill here.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Okay.

The reason I'm asking is, as I said before, that sections like subclause 16(2)—if one were to look at other forms of Canadian law to see something of equivalency, where the government, through legislation, has prioritized some people who might be claimants—don't exist, because that's not the normal way a court goes through things. It says it seeks direction from the government to decide who's eligible to file a claim, because normally....

I'm thinking of an auto manufacturer at this point, or a maker of a product. If they make something that causes harm, I don't think there's any other industry that gets.... The auto industry doesn't get the government to say, “Well, if Ford makes a truck that breaks and hurts somebody, we will give Ford a limited liability.” Bill C-20 is limited liability. It's a special provision. Subclause 16(2) is a special provision offered only to the nuclear industry. In the event of an accident, they don't have to fork over any money for lost power.

[Brenda MacKenzie]

I'm sorry, I'm not prepared to do a comparative analysis of other legislation on this concept.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Okay. Then my question is this. Did the Department of Natural Resources do any comparative analysis to other forms of energy when reflecting on subclause 16(2)?

[Dave McCauley]

When reflecting on subclause 16(2)? No. It was more in relation to reducing those damages that would be indirect as opposed to more direct, because this is a limited scheme of liability for the operator. And that was a consideration.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I have a question for Ms. MacKenzie.

Can you help me find where the distinction happens and if it's anticipated coming forward? I'm trying to figure out where subclause 16(2) eventually lands and where it gets argued out. You mentioned earlier the notion of the court versus the tribunal. Does subclause 16(2) get interpreted differently depending on whether it ends up at a court or a tribunal?

[Brenda MacKenzie]

No, it does not.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

It's the same application.

[Brenda MacKenzie]

It's the same application. You're out.