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The Dangerous Goods Handling and Transportation Amendment Act

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S.M. 2006, c. 4

Bill 4, 4th Session, 38th Legislature

The Dangerous Goods Handling and Transportation Amendment Act

(Assented to June 13, 2006)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. D12 amended

1           The Dangerous Goods Handling and Transportation Act is amended by this Act.

2           Section 1 is amended

(a) by replacing the definitions "container", "hazardous waste", "offer for transport", "safety mark", "shipping document" and "transport" with the following:

"container" means a single-use or reusable container or package, or the part of a means of transport, that is or may be used to contain any quantity of bulk or packaged goods, including, but not limited to, dangerous goods or contaminants; (« contenant » ou « conteneur »)

"hazardous waste" means a product, substance or organism that

(a) is prescribed, designated or classified as hazardous waste in the regulations, or

(b) by its nature conforms to the classification criteria for one or more classes of hazardous wastes set out in the regulations; (« déchets dangereux »)

"offer for transport" means

(a) select, or allow another person to select, a carrier to transport a dangerous good,

(b) present, place, position or otherwise prepare a dangerous good so that a carrier can transport it, or allow another person to do any of those things, or

(c) allow a carrier to take possession of a dangerous good for transportation; (« demande de transport »)

"safety mark" means a design, symbol, device, sign, label, placard, letter, word, number or abbreviation, prescribed in the regulations, or any combination of these things, that is to be displayed

(a) on dangerous goods or containers for dangerous goods, and

(b) on means of transport used in transporting, offering for transport or otherwise handling dangerous goods, or at facilities used in those activities,

to show the nature of the danger, or to indicate compliance with the safety standards prescribed for the containers, the means of transport or the facilities; (« indication de danger »)

"shipping document" means a document, prescribed in the regulations, that relates to dangerous goods that are being transported, offered for transport or otherwise handled and that contains the information relating to the goods required by this Act or the regulations, but does not include an electronic record; (« document d'expédition »)

"transport" means haul, move, convey or deliver dangerous goods using a means of transport; (« transport »)

(b) by repealing the definitions "dangerous goods", "handle", "highway", "packaging", "safety requirements", "safety standards" and "transfer"; and

(c) by adding the following definitions:

"dangerous good" means a product, substance or organism that

(a) is prescribed, designated or classified as a dangerous good or hazardous waste in the regulations, or

(b) by its nature conforms to the classification criteria for one or more classes of dangerous goods or hazardous wastes set out in the regulations; (« marchandises dangereuses »)

"handling", in relation to a dangerous good, means

(a) loading, unloading, packing or unpacking it in a container for the purposes of, in the course of or following transportation, and includes storing it in the course of transportation,

(b) manufacturing, generating, using, applying, transporting, processing, mixing, packaging or selling it,

(c) storing it other than in the course of transportation, or

(d) offering it for sale or for transport; (« manutention »)

"means of transport" means a vehicle, a railway car or other railway equipment, an intra-provincial pipeline or another contrivance that is or may be used

(a) to transport persons or goods, including dangerous goods, or

(b) to offer for transport or otherwise handle dangerous goods; (« moyen de transport »)

"prescribed document" means a shipping document or other document, prescribed in the regulations, that must accompany a dangerous good, or otherwise be used, in the circumstances prescribed in the regulations; (« document réglementaire »)

"safety requirement" means a requirement, prescribed in the regulations, for transporting, offering for transport or otherwise handling dangerous goods, for reporting any of those activities and for training persons engaged in any of those activities; (« règles de sécurité »)

"safety standard" means a standard, prescribed in the regulations, regulating the design, construction, equipment, function or performance of containers or facilities used or intended to be used in transporting, offering for transport or otherwise handling dangerous goods; (« normes de sécurité »)

3           Section 14 is replaced with the following:

Safe handling required

14          No person shall transport, offer for transport or otherwise handle a dangerous good unless

(a) the person complies with all applicable safety requirements;

(b) the good is accompanied by all applicable prescribed documents; and

(c) the container and means of transport comply with all applicable safety standards and display all applicable safety marks.

Misleading safety marks

14.1        No person shall display a safety mark on a container or means of transport, or at a facility, if the mark is misleading as to the presence of danger, the nature of any danger or compliance with any prescribed safety standard.

4           Section 15 is repealed.

5(1)        Subsection 18(1) is replaced with the following:

Powers of environment officers and inspectors

18(1)       An environment officer or inspector may, for the purpose of enforcing this Act or the regulations, or an order under this Act or the regulations,

(a) at any reasonable time and without a warrant, enter and inspect any place or premises, other than a dwelling, or any means of transport, in which the environment officer or inspector reasonably believes there is or has been a dangerous good or contaminant or anything relating to a dangerous good or contaminant;

(b) to determine compliance with this Act or a regulation or order,

(i) inspect and test any installation, equipment or machinery, or any process of handling or disposal relating to a dangerous good or contaminant, at or in a place, premises or means of transport entered under clause (a),

(ii) open, inspect and test any container, or its contents, located at or in a place, premises or means of transport entered under clause (a), and

(iii) take and retain, for purposes of testing or analysis, samples of any raw or manufactured substance or material used in or relating to any installation, equipment, machinery, process, container or contents inspected or tested under subclause (i) or (ii);

(c) stop, detain or cause to be detained a means of transport that contains or has contained, or that the inspector reasonably believes contains or has contained, a dangerous good or contaminant or anything relating to a dangerous good or contaminant;

(d) examine and copy, or require a person to produce for examination and copying, any document

(i) that this Act or a licence, order or regulation under this Act requires any person to prepare or keep, or

(ii) that the inspector reasonably believes contains information relevant to the administration of this Act; and

(e) for the purpose of copying a document mentioned in clause (d), remove it for as long as is necessary to make the copy.

Presentation of identification

18(1.1)     In exercising a power under this section, an environment officer or inspector must, upon request by the person in charge of the place, premises or means of transport, present the identification card issued to him or her by the minister.

5(2)        Subsection 18(2) is amended

(a) by striking out ", packaging,"; and

(b) in the English version, by adding "or her" after "his" wherever it occurs.

6(1)        Subsection 19(1) is replaced with the following:

Hold orders

19(1)       An environment officer or inspector may issue a hold order to a person who is storing, offering for transport, transporting or otherwise handling, or is receiving, a dangerous good or contaminant which the environment officer or inspector believes is causing or may cause a hazardous situation.

6(2)        Subsection 19(2) is amended

(a) by striking out "transfer, transport, sell or dispose of any dangerous good" and substituting "transport, sell, transfer or dispose of a dangerous good or contaminant"; and

(b) by striking out "as the case may require,".

7(1)        Subsection 22(3) is amended by striking out "ascertains" and substituting "learns".

7(2)        The following is added after subsection 22(3):

Costs that may be included in an order

22(3.1)     Without limiting the generality of subsections (2) and (3), the costs that may be included in an order to pay costs under this section include, but are not limited to,

(a) costs incurred by the government for third-party goods and services to carry out any part of an order under subsection (1); and

(b) the costs to the government of using government employees, equipment or materials to carry out any part of an order under subsection (1).

Amount recoverable as debt

22(3.2)     The amount to be paid by a person under an order to pay costs under this section is a debt due by the person to the government and is recoverable as such in a court of competent jurisdiction.

7(3)        Subsection 22(4) is replaced with the following:

Certificate of debt

22(4)       The minister may issue a certificate as to the amount of the debt and file it in the Court of Queen's Bench.  Once filed, it may be enforced against the person as a judgment of the court in favour of the government.

8           Subsection 30(4) is replaced with the following:

Recovery of costs

30(4)       If any action is taken by an environment officer under this section or section 29, or by a person acting on an environment officer's instructions under this section, the director may issue an order to pay the costs incurred by the government to any person who, at the time of the environmental accident, owns or has custody or control of

(a) the contaminant involved in the accident; or

(b) any dangerous good, the presence of which at the accident site required an action to be taken under this section or section 29.

Subsequent order to pay costs

30(5)       If, after the environment officer takes an action under this section or section 29 or a person takes an action acting on an environment officer's instructions, the director learns the identity of a person to whom an order could have been issued under subsection (4), the director may issue an order to pay the costs incurred by the government to the person whose identity the director learns.

Costs that may be included in an order

30(6)       Without limiting the generality of subsections (4) and (5), the costs that may be included in an order to pay costs under this section include, but are not limited to,

(a) costs incurred by the government for third-party goods and services to take any part of the action under this section or section 29, including goods and services from a person acting on an environment officer's instructions under subsection (1); and

(b) the costs to the government of using government employees, equipment or materials to take any part of the action.

Amount recoverable as debt

30(7)        The amount to be paid by a person under an order to pay costs under this section is a debt due by the person to the government and is recoverable as such in a court of competent jurisdiction.

Certificate of debt

30(8)       The minister may issue a certificate as to the amount of the debt and file it in the Court of Queen's Bench.  Once filed, it may be enforced against the person as a judgment of the court in favour of the government.

9           The following is added after section 30:

Minister may demand payment from third party

30.1(1)     The minister may issue a demand for payment to a person (referred to in this section as the "third party") if the minister knows or suspects that the person is indebted or liable to make a payment at any time to a person who owes a debt to the government under an order to pay costs issued under any provision of this Act.

Demand must be served personally

30.1(2)     A demand for payment under this section must be served personally on the third party.

Service at place of business

30.1(3)     A demand for payment is deemed to have been served personally on a third party engaged in business, if it has been left with an adult person employed at the third party's place of business.

Service on a partnership

30.1(4)     If the third party is a partnership, a demand for payment is deemed to have been served personally on all the partners if it has been served on one of the partners or left with an adult person employed at the partnership's place of business.

Application of demand to periodic payments

30.1(5)     If the demand is for money otherwise payable periodically, including payments as interest, rent, remuneration, a dividend, or an annuity, the demand

(a) applies to all payments to be made by the third party to the person until the amount payable under the order to pay costs is paid in full; and

(b) requires the third party to pay the minister, out of each periodic payment, the amount specified in the demand.

Amount payable by third party

30.1(6)     Subject to subsection (5), the third party must pay to the Government of Manitoba on account of the amount payable under the order to pay costs, an amount equal to the lesser of

(a) the amount specified in the demand; or

(b) the amount otherwise payable by the third party to the person.

Status of demand for payment

30.1(7)     A demand for payment under this section

(a) has the equivalent effect and priority of a garnishment order within the meaning of The Garnishment Act, other than a garnishment order that, within the meaning of that Act,

(i) is obtained by a person entitled to maintenance under a maintenance order or by the designated officer on behalf of such a person, or

(ii) is issued to enforce a forfeited recognizance order, a restitution order or an order imposing a fine; and

(b) is subject to the exemptions set out in section 5 of The Garnishment Act.

Personal liability under a third party demand

30.1(8)     If the third party does not comply with the demand, the third party is personally liable to pay to the government the amount to be paid under subsection (6).

Payment discharges liability

30.1(9)     A payment to the government in respect of a demand for payment discharges, to the extent of the payment,

(a) the order to pay costs in relation to which the payment was demanded; and

(b) the third party's debt or liability to pay the money to the person to whom it was otherwise payable.

Protection from liability

30.2        No action or proceeding may be brought against the minister, a director, an environment officer, an inspector or any other person acting under the authority of this Act or the regulations under this Act for anything done or not done, or for any neglect,

(a) in the performance or intended performance of a duty under this Act or the regulations; or

(b) in the exercise or intended exercise of a power under this Act or the regulations;

unless the person was acting in bad faith.

10          Subsection 35(1) is amended

(a) by striking out "vehicle" and substituting "means of transport"; and

(b) in the English version, by adding "or she" after "he".

11          The following is added after section 35:

Evidence: safety marks, labels or accompanying documents

35.1        In any prosecution for an offence under this Act or the regulations, evidence that a container or means of transport bore a safety mark or another label or was accompanied by a prescribed document or other document is, in the absence of evidence to the contrary, proof of the information shown or indicated by the safety mark or other label or contained in the prescribed document or other document.

12          Subsection 40(1) is amended

(a) in clauses (a) and (b), by striking out "substances" and substituting "products, substances and organisms";

(b) in clause (c) of the English version, by striking out "thereof" and substituting "for dangerous goods";

(c) by replacing clause (f) with the following:

(f) the criteria for determining when a product, substance or organism is by its nature to be classified in one or more of the classes of dangerous goods;

(d) by replacing clause (m) with the following:

(m) the types and designs of, and material to be used to make, containers for dangerous goods, or prohibiting certain types or designs of containers or certain materials in making containers;

(e) in clause (n) of the English version, by striking out "thereof" and substituting "for dangerous goods";

(f) by replacing clauses (w) and (x) with the following:

(w) specific or general exemptions from the application of one or more provisions of this Act, and any conditions that must be observed by a person to whom the exemption applies or that apply to a product, substance, organism or other thing, or to a place, to which the exemption applies;

(g) in clause (aa), by striking out "in respect of the transportation or transfer of dangerous goods," and substituting "when dangerous goods are transported, offered for transport or otherwise handled,";

(h) by adding the following after clause (aa):

(aa.1) prescribing documents for any purpose of this Act or the regulations, and prescribing the circumstances in which a prescribed document must accompany specified dangerous goods or dangerous goods of a specified class;

(i) in clause (bb), by striking out "while transporting dangerous goods in a vehicle or class of vehicle on a highway" and substituting "who transport dangerous goods";

(j) by repealing clause (dd); and

(k) by adding the following after clause (ee):

(ee.1) respecting costs that may be included in an order to pay costs under section 22 or 30;

Coming into force

13          This Act comes into force on the day it receives royal assent.