CER Enforcement Policy – Questions and Answers

Is this a new policy?

No, the enforcement policy reflects the CER’s current approach to enforcing regulatory requirements under its mandate. The policy is being published to provide further guidance for industry and the public on the processes and tools supporting all CER enforcement actions. The enforcement policy now also includes the addition of the Warning Letter as an enforcement tool within the graduated enforcement response model.

Why has a Warning Letter (WL) been added?

The WL has been added to address the need for a formal administrative enforcement tool intended to elevate compliance matters to the attention of senior company officials, typically, the designated Accountable Officer. The WL was also determined to be the most appropriate tool to communicate with third parties in order to generate the necessary action to return to compliance if the non-compliance has not been addressed. If the matter has already been addressed, a WL can also be used to inform recipients of the seriousness of the issue, and communicate possible escalation of further enforcement action should the non-compliance re-occur.

What is the difference between a CNC and NNC?

A CNC and NNC are tools issued when a non-compliance is observed during a compliance verification activity, mainly field inspections. They are substantially the same tool, and the only difference is the timing of the corrective action. One tool does not carry more/less weight than the other although the NNC is legislated under s. 108 of the Canadian Energy Regulator Act (CER Act).

If non-compliance(s) are corrected during the course of the inspection, and addressed to the officer’s satisfaction at the time of the inspection close-out meeting, it will be documented in the inspection report as a CNC. If more time is required to address non-compliance(s), an inspection officer determines an effective corrective action and due date, and issues an NNC pursuant to section 108 of the Act.

Do the CER’s enforcement actions have to be applied sequentially?

Although the usual process for routine non-compliances is a step-by-step approach that follows the graduated enforcement response model, enforcement actions can be escalated as required to address the non-compliance. When selecting the most appropriate action to take, the CER will consider the nature and severity of the harm, or potential harm, to the public and the environment, the most appropriate tool(s) to use to achieve regulatory compliance within the shortest timeframe, and previous compliance history.

Who issues what enforcement tools and what appeals are available?

The following table provides an overview of each of the CER’s enforcement tools and their respective appeals:

Overview of the CER’s enforcement tools
Enforcement Tool Non-Statutory/
Issued By CER Review Provision Court Options
Corrected Non-Compliance Non-Statutory Inspection Officer None None
Notice of Non-Compliance Statutory s. 108 Inspection Officer Yes, section 71 – Commission level review None
Warning Letter Non-Statutory Director None None
Inspection Officer Order Statutory s. 109 Inspection Officer Yes – Commission level review pursuant to s. 71 of the CER Act, ss. 58(5) of COGOA and ss. 110(5) of OGOA YesTable Note a
Administrative Monetary Penalty (AMP) Statutory s. 117 AMP Officer Yes – Commission level review pursuant to s. 127 of the CER Act and s. 71.2 of COGOA YesTable Note a
Commission or Designated Officer Order Statutory Commission or DO Yes – pursuant to sections 69 and 71 of the CER Act YesTable Note a
Revocation or Suspension of Authorization Statutory Commission or DO Yes – pursuant to sections 69 and 71 of the CER Act YesTable Note a
ProsecutionTable Note b Statutory Federal Crown Prosecutors N/A N/A

Can more than one enforcement tool be issued for the same non-compliance?

Yes, more than one enforcement tool may be used to obtain or promote compliance, deter future non- compliance or to prevent harm. Enforcement tools are not mutually exclusive, except for AMPs and prosecution, which cannot be issued and pursued for the same act or omission.

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