Natural Resources Committee on Dec. 7th, 2009

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

I suppose so. Yes.

I wonder at times about something that's going to be obviously so much in the public interest, particularly if there are many claimants. We've allowed so much into the tribunal's hands in terms of deciding what's in and out, deciding the amounts of claims, deciding about forwarding claims, and so on, and we've often referenced points that haven't been clear in this act. We have to trust the judge's good judgment, but one can imagine a judge making a bad judgment. It happens from time to time.

[The Chair, Conservative, Leon Benoit]

Go ahead, Ms. MacKenzie.

[Brenda MacKenzie]

There are two different things. If a judge misapplies... I'll back up again.

Just as in any court, there are general rules about how the judge applies the law. In this case, the law is this act and the regulations made under this act later on. That is a significant point of control, because you have the policy oversight to make sure that the rules of the game are good.

Besides that, a judge can make a mistake. In the event that the judge has misapplied the law, which is what you'd be looking at, then all of these decisions would be subject to judicial review. The court has the ultimate authority, as is the case for any...

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

I see, and that's what the Federal Courts Act would...

[Brenda MacKenzie]

Yes. You can't review the decision on the basis that you think you have a better idea, but you can review a decision on the basis that the judge hasn't applied the law properly.

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

Thank you.

[The Chair, Conservative, Leon Benoit]

Thank you, Mr. Cullen.

Do we have anything further on that?

(Clause 57 agreed to on division)

(On clause 58--Payment of awards)

[The Chair, Conservative, Leon Benoit]

Go ahead, Mr. Cullen.

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

This is just the money flowing. Am I to understand from clause 58 that all payments are coming through the government, even though the insurance may be held in private? I'm talking about the $650 million liability cap. We're talking about the government dispensing it at this point. I'm assuming that was all private money that was going to go directly between the claim and the insurer, or the company. Is that not the case?

[Brenda MacKenzie]

No. After the tribunal is established, what happens is that... We haven't quite got to it yet.

Payments are made by the minister out of the nuclear liability reinsurance account. You have this centralized body, as opposed to various judges and various courts deciding individual claims. Now we have a centralized process. Everything that the operator owes is paid into the nuclear liability reinsurance account, and everything that a claimant is owed is paid out of that account.

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

This is where the $650 million would go, if that's where the claim amount got to?

[Brenda MacKenzie]

Yes. The operator, under clause 61, would pay to Her Majesty the amount he owes. That goes into this special account, this separate account. That's the money that's set aside for victims. Then the tribunal awards money that's paid out of that account.

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

Do they put the full $650 million into this account, then deplete it to where it either runs out or there's money left over, and then return it? I'm just trying to understand. If we're talking about expediency in this act, the government is going to be cutting the cheques. Is it imagined that the operator simply forks over $650 million or $100 million? I don't see where that's worked out in the act, where the money actually sits and where it comes from.

[Brenda MacKenzie]

Under clause 61, the operator pays. This is worked out mathematically. It pays the amount equal to the $650 million, less any amounts the operator already paid before the declaration was made and the total of all amounts paid by the minister under the act. So the minister demands the money, the actual money, not the full $650 million. He demands the amount required to cover the claims in that year under subclause 61.(4). Under subclause 61.(5), that's a debt due to Her Majesty in right of Canada and may be recovered in accordance with section 155 of the Financial Administration Act, which basically contains all the mechanisms at the government's disposal to get the money.

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

Thank you.

[The Chair, Conservative, Leon Benoit]

Anything else on clause 58?

(Clauses 58 and 59 agreed to)

(On clause 60--Payments out of the Nuclear Liability Reinsurance Account)

Clause 60.

Go ahead, Mr. Cullen.

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

Help me out. This is the cashflow again? If the amount sitting in the nuclear liability reinsurance account is insufficient, an amount sufficient to meet the deficit comes from the consolidated revenue fund. So this says what happens if the money isn't there in a sufficient amount. But I thought we just established that there would be $650 million in this account. So I don't know why this clause is here if the money is topped up. Am I misunderstanding it?

[The Chair, Conservative, Leon Benoit]

Go ahead, Mr. McCauley.

[Dave McCauley]

The minister would pay out of the nuclear liability reinsurance account, and the amounts would be reimbursed by the operator into the reinsurance account.

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

But is that operating fund right now $650 million? That's my question. The money is not there right now? If an accident happens, the operator dumps in to top up to $650 million?

[Dave McCauley]

The operators have the insurance now. The federal government has a small amount in the reinsurance account. When the tribunal is established, the operator's liability is to the crown instead of to the individual victims, and those payments become a debt to the crown. So when the minister pays out the money, the operator is also liable to pay into the reinsurance account.

[The Chair, Conservative, Leon Benoit]

Shall clause 60 carry?

(Clause 60 agreed to)

(Clause 61 agreed to on division)

(On clause 62--Limit of payments)

Any questions or discussion on clause 62?

Mr. Cullen.

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

This is essentially restating the limit. It says the tribunal cannot award more than $650 million. And it says that if additional funds are appropriated by Parliament to provide compensation for damages, the tribunal may award additional funds for the damage.

I want to get the sequence right. If the tribunal is sitting and hearing compensation claims, and they cross over the $650-million threshold, do they have to pause before making any other payments and then wait for Parliament to set aside new funds? If Parliament says it's a billion dollars, does the tribunal have a new limit to work towards? I want to understand how much the ex-judge is going to be influenced by what's sitting out there in available funds.

[The Chair, Conservative, Leon Benoit]

Mr. McCauley.

[Dave McCauley]

The limit of the tribunal's authority to pay out is $650 million. But one would expect that if additional funds were being appropriated, they would be appropriated as a result of the tabling of the report, soon after the incident, of the estimated cost of claims, etc. It would be expected that the tribunal would know fairly early on if there would be additional funds to be appropriated that it might then pay out.