SECTION 27

Regulations

27.(1) The Governor-in-Council may make regulations generally for carrying out the purposes and provisions of this Act, including regulations

(a) prescribing products, substances and organisms to be included in the classes listed in the schedule;

(b) establishing divisions, subdivisions and groups of dangerous goods and of the classes of dangerous goods;

(c) specifying, for each product, substance and organism prescribed under paragraph (a), the class, division, subdivision or group into which it falls;

(d) determining or providing the manner of determining the class, division, subdivision or group into which dangerous goods not prescribed under paragraph (a) fall;

(e) exempting from the application of this Act and the regulations, or any of their provisions, the handling, offering for transport, transporting or importing of dangerous goods in any quantities or concentrations, in any circumstances, at any premises, facilities or other places, for any purposes or in any means of containment that may be specified in the regulations;

(f) prescribing the manner of identifying any quantities or concentrations of dangerous goods exempted under paragraph (e);

(g) prescribing circumstances in which any activity or thing is under the sole direction or control of the Minister of National Defence;

(h) prescribing circumstances in which dangerous goods must not be handled, offered for transport or transported;

(i) prescribing dangerous goods that must not be handled, offered for transport or transported in any circumstances;

(j) prescribing safety marks, safety requirements and safety standards of general or particular application;

(k) prescribing quantities or concentrations of dangerous goods in relation to which emergency response assistance plans must be approved under
Section 7;

(l) prescribing the manner in which records must be kept under Section 9, the information that must be included in the records and the notices that must be given under that section;

(m) governing the issuance of notices under Section 9;

(n) prescribing shipping records and other documents that must be used in handling, offering for transport or transporting dangerous goods, the information that must be included in those documents and the persons by whom and the manner in which they must be used and kept;

(o) governing the qualification, training and examination of inspectors, prescribing the forms of the certificates referred to in Sections 10 and 11 and prescribing the manner in which inspectors must carry out their duties and functions under this Act;

(p) prescribing the manner of determining the financial responsibility required under subsection 14(1) and prescribing the form of proof that may be requested under subsection 14(2);

(q) prescribing quantities or concentrations of dangerous goods for the purposes of subsection 18(1);

(r) prescribing persons to receive reports under subsection 18(l), the manner of making the reports, the information that must be included in them and the circumstances in which they need not be made;

(s) prescribing the manner of applying for, issuing and revoking approvals of emergency response assistance plans under Section 7 or permits under Section 31 and providing for the appeal or review of a refusal to issue an approval or permit or a revocation of it;

(t) providing for the notification of persons directed to do anything under Sections 9, 17, 19 or 32, for the effect duration and appeal or review of those directions and for any other incidental matters; and

(u) prescribing the manner in which amounts are to be paid under paragraph 34(1)(d). (2) The regulations may refer to any document as it exists when the regulations are made and, for the purpose of prescribing alternative ways of complying with this Act may refer to any of the following documents as amended from time to time:

(a) the International Maritime Dangerous Goods Code published by the International Maritime Organization;

(b) the Technical Instructions for the Safe Transport of Dangerous Goods by Air published by the International Civil Aviation Organization; and

(c) Title 49 of the Code of Federal Regulations of the United States.

BEHIND THE WORDS

Subsection 27(1): Comments on each paragraph follow.

(a) Certain named products are assigned in Lists I and II to specific classes.

(b) The nine classes as listed in the schedule are further subdivided in the regulations. When the Act refers to a schedule it is the schedule included in the Act.

(c) This is accomplished in Lists I and II.

(d) This provides for tests so that any product, substance or organism can be assigned to a class, division, sub-division or group.

(e) This provides for making exemptions from the Act when the Act is found to be too broad in nature. For example, a soft drink in a can should not be considered dangerous goods simply because a gas under pressure is involved.

(f) This is required to enable the application of paragraph (e).

(g) These circumstances are set out in the regulations.

(h) These circumstances are set out in the regulations.

(i) This is often accomplished by identifying the dangerous goods by name.

(j) This is one of the most significant regulation making authorities and allows for a wide application as it includes all safety marks, all safety requirements and all safety standards.

(k) This essentially has been accomplished through the establishment of Schedule XII of the Regulations.

(l) Regulations have not yet been made under this paragraph.

(m) Regulations have not yet been made under this paragraph.

(n) This paragraph is the same as in the TDG Act of 1980 except that in place of shipping records the term shipping documents was used. Recall that shipping records include all shipping documents plus electronic records. The regulations relevant to shipping documents are continued in the regulations. Regulations regarding shipping records that are not shipping documents, i.e., electronic records, have not yet been prepared.

(o) Regulations essential under this paragraph have been completed.

(p) Regulations under this paragraph have not yet been made.

(q) Regulations under this paragraph have been established.

(r) Regulations under this paragraph have been established and the persons to receive reports have been identified by the respective provincial governments.

(s) Regulations to be established under this paragraph have not been completed, however, both procedures have been in place for a considerable period of time.

(t) Regulations under this paragraph have not yet been made.

(u) The regulations have yet to be developed to set out the procedure for a convicted person to pay an amount to be used to conduct research. It is expected that it could be in the form of providing funds to the Transportation Development Centre, or a similar institution, to contract for the required research.

Subsection 27(2): The first part of this subsection allows a regulation to adopt by reference material existing at the time the regulation is made, such as standards. The referenced material would not have to be reproduced as part of the text of the regulation and, hence, printed in the Canada Gazette, etc.

With respect to the second part of subsection 27(2) the general principle being reflected is that any person to be regulated must have the opportunity within Canada to make representation concerning the regulations prior to these regulations taking effect. Thus, the three external documents which may be referred to as amended from time to time can only be referred to as an alternate to existing regulations. In practice, the regulations will reference, for example, a specific IMDG Code by date. This will be the mandatory Code, but industry will have the option of following any subsequent IMDG Code as amended. That is, industry will be able to follow either the specific version of the Code named in the regulations, or any of the subsequently amended versions. The version named in the regulations will be revised to the most recent version each time the regulations are amended.

Title 49 of the Code of Federal Regulations of the United States is referenced as amended from time to time to ensure that reciprocity makes sense. The reciprocity sections in the regulations state that certain goods may be shipped from the United States into Canada if they comply with either CFR 49 or with the Canadian regulations. There are similar provisions for shipments in the other direction. If the TDG Act, 1992 and regulations only referenced CFR 49 as of a particular point in time we would find that we may be requiring someone to ship from the United States to Canada following an outdated set of regulations or following the Canadian regulations when both may be impossible for a consignor to achieve prior to actual arrival in Canada. It is more reasonable to accept material shipped from the United States if it is in compliance with current American law. For this reason CFR 49 is referenced as amended from time to time.

As a point of interest relating to, the validity of the regulations made under the 1980 Act, Section 36 of the Interpretation Act provides that when an enactment is repealed and another enactment is substituted therefor, all regulations made under the repealed enactment remain in force and shall be deemed to have been made under the new enactment, in so far as they are not inconsistent with the new enactment, until they are repealed or others made in their stead.

COURT DECISIONS OF INTEREST

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