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2015 Legislative Session: 4th Session, 40th Parliament

FIRST READING

The following electronic version is for informational purposes only.

The printed version remains the official version.

MR. ANDREW WEAVER

BILL M 229 – 2015

ENERGY AND WATER EFFICIENCY ACT, 2015

This Bill repeals and replaces the Energy Efficiency Act , R.S.B.C. 1996, c. 114, expanding that Act's scope to include the regulation of energy

systems and water products, the provision of energy reports and the imposition of administrative penalties.

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

Part 1 –

Definitions

Definitions

1 In this Act:

"appeal board" means the Environmental Appeal Board continued under the Environmental Management Act ;

"assessment period" means a period prescribed for the purposes of

section 5 (2);

"director" means the person appointed as director under

section 2;

"efficiency" , in relation to water or energy, includes conservation and consumption during periods of lower demand;

"energy product" means

(

a) a prescribed product, and

(

b) a product that is in a prescribed class of products that uses energy or controls or affects the use of energy;

"energy system" means any of the following systems, as may be further described by regulation:

(

a) a system for delivering high-definition television service;

(

b) a compressed air system;

(

c) a water heating system;

(

d) any other system that is prescribed or is in a prescribed class of systems;

"operator" , in relation to a reporting operation, means the person considered under the regulations to be the operator;

"regulated product" means an energy product and a water product;

"reporting operation" means an operation that is in a prescribed class of operations;

"reporting period" means a period prescribed for the purposes of

section 5 (1);

"water product" means

(

a) a prescribed product, and

(

b) a product that is in a prescribed class of products that uses water or controls or affects the use of water.

Part 2 – General

Appointment of director

2 The minister may appoint an employee of the ministry of the minister as director for the purposes of this Act.

Efficiency standards of regulated products

(1) A person must not manufacture, install, configure, offer for sale, sell, lease

or otherwise dispose of a regulated product unless

(

a) the regulated product meets the applicable prescribed efficiency standard, and

(

b) a prescribed label is affixed to the regulated product.

(2) A person must not affix a prescribed label to a regulated product unless the

regulated product meets the applicable prescribed efficiency standard.

(3) Subsection (1) does not apply to

(

a) a regulated product that is manufactured on or before a prescribed date, or

(

b) a person who is not in the business of doing an activity that, under that subsection,

must not be done unless paragraphs (

a) and (

b) of that subsection apply.

Efficiency standards of energy systems

(1) A person within a prescribed class of persons must not

(

a) install, or

(

b) operate an energy system unless the energy system

(

c) meets the applicable prescribed efficiency standard, and

(

d) includes a component to which a prescribed label is affixed.

(2) Subsection (1) does not apply to

(

a) an energy system installed before a prescribed date, or

(

b) a person who is not in the business of doing an activity that, under that subsection,

must not be done unless paragraphs (

c) and (

d) of that subsection apply.

Part 3 – Energy Reports And Confidentiality

Energy reports

(1) For each reporting period, the operator of a reporting operation, in accordance

with the regulations, must submit a report respecting

(

a) energy consumption and production by the operation for the reporting period,

(

b) production of prescribed industrial products, and

(

c) any other matter prescribed for the purposes of this Act.

(2) For each assessment period, the operator of a reporting operation, in accordance

with the regulations, must

(

a) carry out an assessment respecting ways in which the operation could, during

the assessment period, significantly improve its energy efficiency and produce energy

for the purpose of reducing energy purchasing, and

(

b) submit a report respecting the assessment referred to in paragraph (a).

(3) Subject to subsection (4), the operator of a reporting operation must submit,

within the prescribed period, a supplementary report after the operator becomes aware

that

(

a) information in a previous report under this

section did not completely and accurately

disclose the required information, or

(

b) information required to be reported in a previous report has changed.

(4) Subsection (3) does not apply in relation to inaccuracies, omissions or changes

that are considered under the regulations to be immaterial.

(5) Reports under subsection (1) may

(

a) cover more than one reporting operation of the same operator, and

(

b) be combined with a report submitted under

section 3 of the Greenhouse Gas Industrial Reporting and Control Act ,

but the required information respecting the matters referred to in subsection (1)

of this

section must be provided separately for each operation covered by the report.

(6) If a report under subsection (1) is combined with a report under

section 3 of

the Greenhouse Gas Industrial Reporting and Control Act and there is an inconsistency between the regulations under

section 21 of this Act

and the regulations under that Act, the regulations under that Act prevail to the

extent of the inconsistency.

(7) The director may

(

a) require a report under this

section to be audited in accordance with the directions

of the director, or conduct, or authorize a person to conduct, such an audit, and

(

b) require an operator to provide additional information in support of a report

under this section.

Confidentiality

(1) In this section:

"protected information" means information that may reveal

(

a) trade secrets of a third party, or

(

b) commercial, financial, labour relations, scientific or technical information

of or about a third party;

"third party" has the same meaning as in the Freedom of Information and Protection of Privacy Act ;

"trade secret" has the same meaning as in the Freedom of Information and Protection of Privacy Act .

(2) Subject to this section, a person who,

(

a) through reports required to be provided by an operator under this Act,

(

b) through the exercise of powers under

section 8 in relation to a reporting operation,

(

c) through an information-sharing agreement under

section 7 that provides that the

information is to be kept confidential,

has access to protected information that is in the custody or under the control of

the government must not disclose the protected information to any other person.

(3) The prohibition in subsection (2) does not apply to disclosure of the following

information:

(

a) information that is publicly available;

(

b) information that is required or authorized to be made public under the regulations.

(4) The prohibition in subsection (2) does not apply to disclosure in the following

circumstances:

(

a) under

Part 2 [Freedom of Information] of the Freedom of Information and Protection of Privacy Act ;

(

b) in the course of administering or enforcing this Act or a prescribed enactment;

(

c) for the purpose of court proceedings;

(

d) for the purpose of developing and publishing reports respecting energy efficiency;

(

e) in accordance with an information-sharing agreement under

section 7 of this Act;

(

f) with the consent of the organization, person or group of persons that is the

third party in relation to the protected information.

(5) Nothing in subsection (4) (

d) authorizes the disclosure of information in a report

respecting energy efficiency that reveals protected information.

Information-sharing and other agreements

(1) For the purposes of this section, "information-sharing agreement" means an agreement that sets conditions on the collection, use or disclosure by the

parties to the agreement of information respecting energy efficiency.

(2) The minister may enter into an information-sharing agreement

(

a) with Canada, another province or another jurisdiction in or outside Canada, or

with an agent of any of them, with the prior approval of the Lieutenant Governor in

Council, and

(

b) with a prescribed organization or person or with an organization or person in

a prescribed class of organizations or persons.

(3) The minister may enter into agreements with an organization or person responsible

for the accreditation of persons carrying out verifications under this Act.

Part 4 – Inspections

Inspections

(1) In this section:

"inspector" means a person or class of persons designated as an inspector under subsection (2);

"private dwelling" means a structure that is used solely as a private residence or a residential accommodation

within any other structure.

(2) The minister may, in writing, designate a person or class of persons as an inspector

for the purposes of subsection (3) or (6), or both.

(3) For the purposes of ensuring compliance with this Act, other than

section 5,

and the regulations, other than regulations under

section 21, an inspector may enter,

at any reasonable time and to do anything referred to in subsection (4) of this section,

a place where

(

a) an energy system is being installed or operated, or

(

b) a regulated product is manufactured, installed, configured, operated, offered

for sale, sold, leased or otherwise disposed of.

(4) An inspector who enters a place under subsection (3) may do any or all of the

following for the purposes referred to in that subsection:

(

a) inspect and examine an energy system or a regulated product;

(

b) use or operate anything, or require the use or operation of anything, under conditions

specified by the inspector;

(

c) remove samples;

(

d) make or remove copies of records;

(

e) remove an energy system or a regulated product to another place for testing.

(5) Subject to subsection (9), if an inspector removes an energy system or regulated

product under subsection (4) (e), the inspector must promptly return the energy system

or regulated product after testing is completed.

(6) For the purposes of ensuring compliance with

section 5 and the regulations under

section 21, an inspector may at any reasonable time enter a place that is part of

the business premises or operations of a reporting operation.

(7) For the purposes referred to in subsection (6), an inspector who enters a place

under that subsection may

(

a) do anything referred to in subsection (4) (

b) to (d), and

(

b) inspect, analyze, measure, sample or test anything.

(8) An inspector who enters a place in accordance with this

section

(

a) may take along the persons and equipment that the inspector considers may be

necessary for the purposes of the inspection, and

(

b) must provide, on request, proof of identity to a person present at the place,

land or premises entered.

(9) Section 112 of the Environmental Management Act , other than subsections (1) (

a) and (4), applies for the purposes of inspections

and seizures under this Act, and for that purpose,

(

a) a reference in that

section to "this Act" or to "this Act or the regulations"

must be read as a reference to this Act or to this Act or the regulations,

(

b) the reference in that

section to

section 109 or 111 must be read as a reference

to this section, and

(

c) a reference in that

section to an officer must be read as a reference to an inspector.

(10) A person who is the subject of an inspection under this section, or who is or

was a director, receiver, receiver manager, officer, employee, banker, auditor or

agent of a person who is the subject of an inspection under this section, on request

of an inspector, must

(

a) produce, without charge or unreasonable delay and for examination by the inspector,

any record relating to requirements under this Act, and

(

b) provide the inspector with information relevant to the purposes of the inspection.

(11) The authority under subsections (3) and (6) must not be used to enter a private

dwelling except with the consent of the occupant or the authority of a warrant under

subsection (12).

(12) If satisfied by evidence given under oath or affirmation that

(

a) there are reasonable grounds to believe that an energy system is being installed

or operated in a private dwelling or a regulated product is being manufactured, installed,

configured, operated, offered for sale, leased or otherwise disposed of in a private

dwelling,

(

b) entry to a private dwelling is necessary for any purpose related to carrying

out an inspection under subsection (3) or (6), and

(

c) entry to a private dwelling has been refused or there are reasonable grounds

for believing that it will be refused,

a justice may issue a warrant authorizing an inspector, and, if appropriate, any peace

officer that the inspector may call on for assistance, to enter the private dwelling

and conduct the inspection in relation to those parts of the private dwelling believed

to be used as described in paragraph (a).

Obstruction

(1) A person must not hinder, obstruct, impede or otherwise interfere with an inspector

who is exercising a power under

section 8.

(2) If information is required to be furnished or a document or thing is required

to be provided or produced under this Act, a person furnishing that information or

providing or producing that document or thing must not furnish false information or

provide or produce a false document or thing.

Part 5 – Administrative Penalties And Offences

Division 1 – Administrative Penalties

Contraventions

(1) After giving a person an opportunity to be heard, the director may find that the

person has contravened

(

a) a provision of this Act, or

(

b) a prescribed provision of the regulations.

(2) If a corporation contravenes a provision referred to in subsection (1), a director,

officer or agent of the corporation who authorized, permitted or acquiesced in the

contravention also contravenes the provision.

(3) If an employee, contractor or agent of a corporation contravenes a provision

referred to in subsection (1) in the course of carrying out the employment, contract

or agency, the corporation also contravenes the provision.

(4) The director may not find that a person has contravened a provision referred

to in subsection (1) if the person demonstrates to the satisfaction of the director

that

(

a) the person exercised due diligence to prevent the contravention, or

(

b) the person's actions or omissions relevant to the provision were the result of

an officially induced error.

(5) If a person referred to in subsection (2) or (3) has not contravened a provision

referred to in subsection (1) as a result of demonstrating to the satisfaction of

the director anything referred to in subsection (4), the director may find, subject

to subsection (4), that any of the other persons referred to in subsection (2) or

(3) have contravened the provision.

(6) A person does not contravene a provision referred to in subsection (1) by doing

or omitting to do something if that act or omission is reasonably necessary to conform

to the requirements of the Workers Compensation Act or any regulations under that Act.

Administrative penalties

(1) If the director finds that a person has contravened a provision referred to in

section 10 (1), the director may impose an administrative penalty on the person in

an amount that does not exceed the prescribed limit.

(2) Before the director imposes an administrative penalty on a person, the director,

in addition to considering anything else the director considers relevant, must consider

the following:

(

a) previous contraventions by and administrative penalties imposed on the following:

(

i) the person;

(ii) if the person is an individual, a corporation for which the individual is or

was a director, officer or agent;

(iii) if the person is a corporation, an individual who is or was a director, officer

or agent of the corporation;

(

b) the gravity and magnitude of the contravention;

(

c) the extent of the harm to others resulting from the contravention;

(

d) whether the contravention was repeated or continuous;

(

e) whether the contravention was deliberate;

(

f) any economic benefit derived by the person from the contravention;

(

g) the person's efforts to prevent and correct the contravention;

(

h) the cost of compliance with the provision contravened;

(

i) whether the person self-reported the contravention;

(

j) the degree and quality of cooperation during an investigation respecting the

contravention;

(

k) any undue hardship that might arise from the amount of the penalty;

(

l) any other prescribed matters.

(3) If an administrative penalty is imposed on an operator under the Greenhouse Gas Industrial Reporting and Control Act respecting a failure to comply with a reporting requirement under that Act, an administrative

penalty may not be imposed on the operator under this Act respecting a reporting requirement

that is substantially the same as the reporting requirement under that Act.

(4) If a person is charged with an offence under this Act, an administrative penalty

may not be imposed on the person in respect of the same circumstances that gave rise

to the charge.

Notice of contravention or penalty

(1) If the director finds under

section 10 that a person has contravened a provision

referred to in that

section or imposes under

section 11 an administrative penalty

on a person, the director must give to the person a notice of the decision, and the

notice must include reasons for the decision and specify the following:

(

a) the contravention;

(

b) the amount of the penalty, if any;

(

c) the date by which the penalty, if any, must be paid;

(

d) the person's right, with respect to the decision, to apply for a reconsideration

under

section 14 or to appeal the decision under

section 18.

(2) If the director imposes an administrative penalty on a person, the director may

make public the reasons for and the amount of the penalty.

Due date of penalty

(1) Subject to sections 14 (3) and 18 (2), a person on whom an administrative penalty

is imposed under

section 11 must pay the penalty

(

a) within 60 days after the date on which the notice referred to in

section 12 is

given to the person, or

(

b) by a later date specified by the director.

Reconsideration

(1) The director, on his or her own motion or on application under subsection (2),

may reconsider a decision made under

section 10 (1) or 11 (1) and confirm, vary or

rescind the decision.

(2) A person who has been given a notice under

section 12, within 30 days after the

date on which the notice was given, may apply to the director for a reconsideration

under subsection (1) of this section.

(3) On application under subsection (2), the decision that is the subject of the

reconsideration is stayed, unless the director orders otherwise.

Enforcement of administrative penalty

(1) An administrative penalty constitutes a debt payable to the government by the

person on whom the penalty is imposed.

(2) If a person fails to pay an administrative penalty as required under

section

13, the government may file with the Supreme Court or Provincial Court a certified

copy of the notice imposing the penalty and, on being filed, the notice has the same

force and effect, and all proceedings may be taken on the notice, as if the notice

were a judgment of that court.

Revenue from administrative penalties

(1) The director must pay into the consolidated revenue fund all amounts derive from

administrative penalties.

Limitation period

(1) The time limit for giving a notice under

section 12 imposing an administrative

penalty is 2 years after the date on which the act or omission alleged to constitute

the contravention first came to the attention of the director.

(2) A certificate purporting to have been issued by the director and certifying the

date referred to in subsection (1) is proof of that date.

Appeal

(1) A person, within 30 days after the period referred to in

section 14 (2) has expired

or another period as ordered by the appeal board, may appeal to the appeal board a

decision of the director under

section 10 (1) or 11 (1) or a prescribed decision.

(2) The commencement of an appeal under subsection (1) operates as a stay of the

decision that is the subject of the appeal, unless the appeal board orders otherwise.

(3) The director has full party status in an appeal.

(4) On an appeal under subsection (1), the appeal board may confirm, vary or rescind

the decision under appeal.

(5) Division 1 of

Part 8 and

section 102 of the Environmental Management Act apply to an appeal under this section.

Division 2 – Offences

Offences

(1) A person who contravenes a provision of this Act or the regulations commits an

offence.

(2) If a corporation commits an offence under this Act, a director or officer of

the corporation who authorized, permitted or acquiesced in the offence commits an

offence even if the corporation has been prosecuted or convicted.

(3) If the director imposes under

section 11 an administrative penalty on a person,

a prosecution for an offence under this Act for the same contravention may not be

brought against the person.

Part 6 – Regulations

Division 1 – Regulations of the Lieutenant Governor in Council

Regulations in relation to various matters

20 The Lieutenant Governor in Council may make regulations as follows:

(

a) prescribing fees to be paid in respect of any matter in respect of which the

ministry of the minister provides a service or performs a duty under this Act, and

prescribing by whom and by what time the fees must be paid;

(

b) requiring or authorizing information to be made public for the purposes of

section

6 (3);

(

c) prescribing enactments for the purposes of

section 6 (4) (b);

(

d) prescribing organizations, persons and classes of organizations and persons

for the purposes of

section 7 (2) (b);

(

e) respecting the imposition of administrative penalties, including, without limitation,

prescribing

(

i) provisions for the purposes of

section 10 (1) (b),

(ii) matters to be considered before imposing administrative penalties,

(iii) the criteria for determining appropriate administrative penalties, and

(iv) different limits on different administrative penalties, including different

limits for contraventions by different classes of persons;

(

f) respecting appeals under

section 18, including, without limitation, prescribing

decisions for the purposes of

section 18 (1) and exercising authority equivalent to

that under

section 105 of the Environmental Management Act or adopting regulations under that section;

(

g) respecting how documents that are required to be given under this Act may be

given and when those documents are deemed to be received;

(

h) defining a word or phrase used but not defined in this Act.

Regulations in relation to reporting operations

(1) The Lieutenant Governor in Council may make regulations for the purposes of

section

5, including, without limitation, regulations as follows:

(

a) prescribing classes of operations as reporting operations;

(

b) respecting who is to be considered the operator of a reporting operation;

(

c) requiring reporting operations to register with, or submit information to, the

director, and respecting the timing, form, content and manner of the registration

and submission of the information;

(

d) respecting the methodology that must be used to determine something required

to be reported under that section;

(

e) respecting assessments under subsection (2) of that section;

(

f) respecting reports under that section, including, without limitation, prescribing

requirements respecting to whom the reports are to be submitted and the timing, form,

content, supporting evidence, verification, certification and manner of submission

of the reports;

(

g) prescribing periods for the purposes of the

definitions of "assessment period"

and "reporting period" in

section 1 and for the purposes of

section 5 (3);

(

h) prescribing industrial products for the purposes of subsection (1) (

b) of that

section and other matters for the purposes of subsection (1) (

c) of that section;

(

i) establishing requirements and standards respecting quality assurance of the information

provided in the reports under that

section and the data that support the reports,

including, without limitation, requirements and standards respecting

(

i) monitoring protocols and equipment,

(ii) sampling protocols and equipment, and

(iii) analytical protocols and equipment

that must be used for the purposes of reports under that section;

(

j) establishing requirements respecting the retention of records supporting reports

under that section;

(

k) respecting the conduct of verifications under this Act;

(1) establishing requirements and standards respecting qualifications, accreditation,

conflict of interest and other matters relating to persons who perform verifications

under this Act.

(2) In making regulations under subsection (1), the Lieutenant Governor in Council

may make different regulations

(

a) for different reporting operations, and

(

b) for different requirements of the same reporting operation.

Division 2 – Regulations of the Minister

General

(1) The minister may make regulations referred to in

section 41 of the

Interpretation Act .

(2) Without limiting subsection (1), the minister may make regulations as follows:

(

a) prescribing products and classes of products for the purposes of the definition

of "energy product" in

section 1;

(

b) prescribing systems and classes of systems for the purposes of the definition

of "energy system" in

section 1 and further describing any of the systems referred

to in that definition;

(

c) prescribing products and classes of products for the purposes of the definition

of "water product" in

section 1;

(

d) respecting the installation, configuration, testing, maintenance and repair of

an energy system or a regulated product;

(

e) prescribing efficiency standards for the purposes of sections 3 (1) (

a) and (2)

and 4 (1) (

c) and prescribing standards respecting how measuring and testing must

be done to determine whether an efficiency standard is met;

(

f) prescribing dates for the purposes of sections 3 (3) (

a) and 4 (2) (a);

(

g) prescribing classes of persons for the purposes of

section 4 (1);

(

h) designating organizations or persons to test an energy system or a regulated

product;

(

i) providing for the manner of placing a prescribed label on a regulated product

that conforms to the prescribed efficiency standards;

(

j) prescribing the contents of labels that must be placed on regulated products.

Regulations in relation to exemptions

(1) The minister may make regulations exempting any energy system, class of energy

systems, person, class of persons, regulated product or class of regulated products

from any provision of this Act, other than

section 5, or the regulations, other than

regulations under

section 21.

Division 3 – Adoption by Reference

Adoption by reference

(1) A regulation under this Act may adopt by reference, in whole or in part and with

any changes considered appropriate, any code, standard or rule Repeal

(

a) enacted as or under a law of another jurisdiction, including a foreign jurisdiction,

(

b) set by a provincial, national or international body or any other code-, standard-

or rule-making body,

as the regulation, code, standard or rule reads at a specific date, as it reads at

the time of adoption or as it is amended from time to time.

Part 7 – Repeal

Repeal

25 The Energy Efficiency Act , R.S.B.C. 1996, c. 114, is repealed.

Commencement

26 This Act comes into force by regulation of the Lieutenant Governor in Council.

Explanatory Note

This Bill repeals and replaces the Energy Efficiency Act , R.S.B.C. 1996, c. 114, expanding that Act's scope to include the regulation of energy

systems and water products, the provision of energy reports and the imposition of

administrative penalties.

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c) Queen's Printer, Victoria, British Columbia, Canada