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Copyright 2001: Queen’s Printer,
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Statutes of Newfoundland and Labrador 2001


Statutes of Newfoundland and Labrador 2001 Chapter P-10.1

CHAPTER P-10.1

AN ACT RESPECTING PETROLEUM PRODUCTS

(Assented to May 24, 2001)

Analysis

1. Short title

2. Interpretation

3. Commissioner

4. Maximum prices

5. Prohibition

6. Base fuel prices

7. Price adjustment mechanism

8. Application for change in price

9. Interim order

10. Price change due to taxation

11. Notice to appear

12. Investigation into prices

13. Inspection

14. Search with warrant

15. Complaint hearing

16. Evidence

17. Appeal

18. Penalties

19. Continuing violation

20. Vicarious liability

21. Recovery of penalty

22. Contract may not exclude application of orders

23. Regulations

24. Budget

25. Audit

26. Transitional

27. Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


Short title

1. This Act may be cited as the Petroleum Products Act.

Interpretation

2. (1) In this Act

(a) "commissioner" means the Petroleum Products Pricing Commissioner appointed under section 3;

(b) "consumer" means a person who acquires a petroleum product for that person's use and not for the purpose of selling, exchanging or otherwise disposing of it to another person, but does not include a person who acquires a petroleum product under a contract between the person and a retailer or wholesaler at a price that the person and the retailer or wholesaler have previously agreed on;

(c) "heating fuel" means furnace oil, stove oil or propane of a type used primarily for generating heat;

(d) "minister" means the minister appointed under the Executive Council Act to administer this Act;

(e) "motor fuel" means gasoline, diesel fuel or propane of a type used primarily in internal combustion engines;

(f) "outlet" means a station, shop, establishment, key lock facility, or other place where a petroleum product is sold at retail or kept for retail sale;

(g) "petroleum product" means heating fuel and motor fuel and another liquid product, whether or not distilled from petroleum, used as a heating fuel or motor fuel or as a component in it;

(h) "price" means the consideration, whether wholly or partly in money or otherwise, payable for a petroleum product and includes any component of the consideration;

(i) "retailer" means a person who sells a petroleum product or keeps a petroleum product for sale directly to consumers; and

(j) "wholesaler" means a person, other than a retailer, who sells a petroleum product or keeps a petroleum product for sale.

(2) This Act does not apply to a wholesaler in relation to the sale by the wholesaler of a petroleum product to a person other than a retailer or the keeping of a petroleum product by the wholesaler for sale to a person other than a retailer.

Commissioner

3. (1) There is established the Office of the Commissioner of Petroleum Products Pricing.

(2) The Lieutenant-Governor in Council shall appoint a person as the Commissioner of Petroleum Products Pricing who shall administer the office established under subsection (1).

(3) The person appointed as commissioner shall hold office during good behaviour for a term of 3 years and may be appointed for further terms.

(4) The person appointed as commissioner may be removed before the expiration of his or her term of office by the Lieutenant-Governor in Council for cause.

(5) The commissioner shall be paid the remuneration that is fixed by the Lieutenant-Governor in Council.

(6) The commissioner may, subject to the approval of the minister, employ for the term and on the conditions the commissioner may determine persons necessary to enable the commissioner to perform his or her duties under this Act.

Maximum prices

4. (1) The commissioner has the authority

(a) to set, and shall set the maximum wholesale and retail prices that a wholesaler and a retailer may charge for heating fuel and motor fuel; and

(b) to determine the minimum and maximum mark up between the wholesale price to the retailer and the retail price to the consumer of heating fuel and motor fuel.

(2) The commissioner may divide the province into zones and may set a different maximum wholesale and retail price that a wholesaler and a retailer may charge for heating fuel and motor fuel for each zone.

(3) Notwithstanding subsection (2), the commissioner may set a different maximum wholesale and retail price that a wholesaler and a retailer may charge for heating fuel and motor fuel within a zone taking into consideration the criteria prescribed for that purpose by the regulations.

Prohibition

5. (1) A wholesaler shall not charge a price for heating fuel or motor fuel greater than the maximum price set by the commissioner.

(2) A retailer shall not charge a price for heating fuel or motor fuel greater than the maximum price set by the commissioner.

(3) Where the commissioner determines the minimum and maximum mark up between the wholesale price to the retailer and the retail price to the consumer of heating fuel and motor fuel, a wholesaler or retailer shall not set a mark up different from that determined by the commissioner.

Base fuel prices

6. (1) The commissioner shall establish a petroleum product base wholesale and retail price for each type of heating fuel and motor fuel sold by a wholesaler and a retailer using the criteria prescribed for that purpose by the regulations.

(2) The petroleum product base wholesale and retail price set by the commissioner for each type of heating fuel and motor fuel, as adjusted periodically under section 7, shall constitute the maximum price chargeable by a wholesaler or retailer for those types of heating fuel or motor fuel.

Price adjustment mechanism

7. (1) The commissioner shall establish a procedure for determining adjustments to the petroleum product base wholesale and retail price of each type of heating fuel and motor fuel applying for the purpose the criteria prescribed by the regulations.

(2) The commissioner shall periodically, using the procedure referred to in subsection (1), adjust the petroleum product base wholesale and retail price for each type of heating fuel and motor fuel to set the maximum allowable retail and wholesale prices for each type of heating fuel and motor fuel.

(3) The commissioner shall inform wholesalers and retailers of the new maximum allowable prices for each type of heating fuel and motor fuel as determined under subsection (2) and the date on which the price comes into force.

Application for change in price

8. (1) A wholesaler or a retailer may apply to the commissioner for a change in the price of a type of heating fuel or motor fuel setting out

(a) the price last approved by the commissioner;

(b) the proposed new price;

(c) the date on which the proposed new price is to take effect;

(d) the reasons for the proposed change in price; and

(e) the other information that may be prescribed by the regulations.

(2) The commissioner, following the investigation he or she considers necessary, including the holding of a hearing where he or she considers one is desirable, may

(a) deny the application;

(b) approve the application and set a new price as proposed by the applicant; or

(c) set another price that he or she considers appropriate in the circumstances.

(3) A price change ordered under subsection (2) takes effect on the date set out in the order.

(4) Only one application may be made by a wholesaler or a retailer in a 12 month period.

(5) Where the commissioner makes an order under paragraph (2)(b) or (c), the commissioner, after giving notice of the application and an opportunity to be heard, may order the price change to apply to other wholesalers or retailers in addition to the applicant.

Interim order

9. (1) The commissioner may, at any time after the filing of an application for approval of a price change and before making an order under section 8, make an interim order setting a temporary price of the heating fuel or motor fuel that is the subject of the application.

(2) An interim order expires on the date an order made under section 8 takes effect.

Price change due to taxation

10. Where a price change with respect to the wholesale and retail price of heating fuel and motor fuel reflects a change in the price that is wholly attributable to changes in taxation, the commissioner shall be considered to have issued an order approving the proposed price on the date on which the change in taxation is to be effective.

Notice to appear

11. (1) The commissioner may give notice to a wholesaler or a retailer directing the wholesaler or the retailer to appear before him or her at a hearing for the purpose of making a submission to assist the commissioner in determining whether or not the prices being charged by that wholesaler or retailer for heating fuel or motor fuel are in accordance with the prices set by the commissioner.

(2) Where a wholesaler or retailer fails to appear at the hearing as directed under subsection (1), the commissioner may proceed in the absence of the wholesaler or retailer.

Investigation into prices

12. (1) The commissioner may conduct an investigation to determine whether a price being charged by a wholesaler or a retailer for heating fuel or motor fuel exceeds the maximum allowable price set under this Act.

(2) When the commissioner as a result of an investigation conducted under subsection (1) believes that a wholesaler or a retailer has charged or is charging a price for heating fuel or motor fuel that exceeds the maximum price set by the commissioner, the commissioner shall order the wholesaler or retailer to sell or offer for sale the heating fuel or motor fuel at a price not to exceed the price set by the commissioner.

Inspection

13. (1) Where it is reasonably necessary to ensure compliance with this Act, the commissioner, or a person whom the commissioner may authorize for the purpose, may

(a) at reasonable times enter a premises of a wholesaler or a retailer of heating fuel or motor fuel to determine whether the prices being charged by the wholesaler or retailer for heating fuel or motor fuel exceed the maximum prices set for either by the commissioner;

(b) require the production of books, records or other documents applicable to the sale of heating fuel or motor fuel and may examine those books, records or documents or remove them for the purpose of making copies of them; and

(c) inquire into all matters relating to the sale by the wholesaler or retailer of heating fuel or motor fuel.

(2) Where the commissioner or another person removes books, records or other documents under paragraph (1)(b), he or she shall give to the person from whom those items were taken a receipt for those items and shall immediately make copies of those items and return the originals to the person who was given the receipt.

Search with warrant

14. (1) Where the commissioner or another person whom the commissioner may authorize for the purpose believes on reasonable grounds that a person is contravening or has contravened this Act, or where entry onto a premises where a contravention of this Act is believed to occur or have occurred is refused or denied, the commissioner or other person may, with a warrant issued under subsection (2), enter those premises and do all those things referred to in section 13.

(2) A Provincial Court judge or a justice of the peace who is satisfied on oath or affirmation that there are reasonable grounds for believing that a contravention of this Act has occurred or that entry onto a premises has been refused or denied, may issue a warrant authorizing the commissioner or other person named in the warrant to enter the premises and search for and inspect anything that will provide evidence with respect to a contravention of this Act and to do all those things referred to in section 13.

(3) A wholesaler or a retailer or an employee of either and a person found there shall give the commissioner or other person reasonable help to enable the commissioner or other person to carry out his or her duties and functions under this Act and shall provide the information that the commissioner or other person may reasonably require.

Complaint hearing

15. (1) The commissioner may hold a hearing in respect of a complaint made against a wholesaler or retailer and in that case shall notify the wholesaler or retailer complained of as to the nature of the complaint and the time, date and place of the hearing.

(2) In a hearing under this section, the wholesaler or retailer and the complainant shall be entitled to be heard and witnesses shall be permitted to attend to give evidence on their behalf.

Evidence

16. (1) The commissioner shall have the power of summoning persons as witnesses and of requiring them to give evidence under oath or affirmation, orally or in writing, and to produce those documents and things that the commissioner considers necessary to the full investigation of the matters into which the commissioner is authorized to inquire.

(2) The commissioner shall have the same power to enforce the attendance of persons as witnesses and to compel them to give evidence and produce documents and things as is vested in a commissioner under the Public Inquiries Act.

(3) The commissioner may administer the oath or affirmation to a witness.

Appeal

17. An appeal lies from a decision of the commissioner to the Trial Division.

Penalties

18. Where a person

(a) violates or participates in violating this Act, its regulations, or an order of the commissioner;

(b) causes or participates in causing another person directly or indirectly to violate this Act, the regulations, or an order of the commissioner;

(c) fails, neglects, omits, or refuses to do an act or thing required of that person by this Act, the regulations, or an order of the commissioner; or

(d) causes or participates in causing another person, directly or indirectly, to fail, neglect, omit, or refuse to do an act or thing required of that retailer by this Act, the regulations, or an order of the commissioner,

the person is liable to a penalty imposed by the commissioner of not more than $5,000.

Continuing violation

19. Each day or part of a day during which a prohibited activity subject to a penalty under section 18 is continued gives rise to a separate and distinct liability to a penalty under that section.

Vicarious liability

20. The act, failure, neglect, omission or refusal of an officer, agent or other person acting for or employed by a wholesaler or a retailer, acting within the scope of his or her employment, shall in every case be considered to be the act, failure, neglect, omission or refusal of the wholesaler or retailer.

Recovery of penalty

21. Where the amount of a penalty imposed under this Act is not paid within 15 days after imposition, the commissioner, in addition to other remedies under this Act, may proceed to recover the amount in the same manner as for the recovery of a debt.

Contract may not exclude application of orders

22. A provision, term or condition in an agreement or contract that provides that the contract is terminated or that a wholesaler or a retailer is permitted or authorized, or purports to permit or authorize, a wholesaler or a retailer to reduce, limit or cease to supply a petroleum product or services on the ground that an enactment or an order of the commissioner or a judicial body, prevents a price or change in the price provided from being effective or becoming effective is of no effect.

Regulations

23. The Lieutenant-Governor in Council may make regulations

(a) respecting the criteria to be employed by the commissioner in establishing the petroleum product base wholesale and retail prices under section 6;

(b) respecting the procedure to be applied and the criteria to be considered by the commissioner for determining changes to the petroleum product base wholesale and retail prices under section 7;

(c) respecting the conduct of an investigation or the holding of a hearing by the commissioner;

(d) respecting the manner of informing wholesalers and retailers for the purpose of section 7;

(e) requiring wholesalers and retailers to whom this Act applies to pay the costs of the office of the commissioner and the costs associated with the holding of a hearing and prescribing the manner of calculating and apportioning those costs;

(f) respecting the information required to be provided to the commissioner by a wholesaler or a retailer; and

(g) generally to give effect to the purpose of this Act.

Budget

24. (1) The commissioner annually shall submit to the minister for his or her approval estimates of the sums that will be required to be provided by the Legislature for the payment of salaries, allowances and expenses of the commissioner's office during the next ensuing fiscal year.

(2) The minister shall review the estimates submitted under subsection (1) and may approve them or approve them with the changes he or she considers appropriate.

Audit

25. (1) The minister shall appoint a qualified auditor to audit annually the accounts of the commissioner's office.

(2) The auditor appointed under subsection (1) shall submit his or her report to the minister and provide a copy to the commissioner.

Transitional

26. (1) The wholesale and retail prices charged by a wholesaler or a retailer for motor fuel on the day this Act comes into force shall be considered to be the petroleum product base wholesale and retail prices as if they had been set by the commissioner under section 6 of this Act.

(2) Notwithstanding subsection (1), where the commissioner, after an examination of the prices charged by wholesalers and retailers for motor fuel in the 60 days immediately prior to the coming into force of this Act determines that the prices being charged on the day this Act comes into force are not just and reasonable taking into consideration changes in the price of crude oil, refining costs, transportation costs and the other costs the commissioner considers relevant in that period, the commissioner may establish interim petroleum product base wholesale and retail prices.

(3) Notwithstanding subsection (1), where the commissioner, after an examination of the prices charged by wholesalers and retailers, determines that the prices set by subsection (1) or by the commissioner under subsection (2) are not just and reasonable taking into consideration changes in the price of crude oil, refining costs, transportation costs and the other costs the commissioner considers relevant, the commissioner may establish new interim petroleum base wholesale and retail prices.

(4) A wholesaler or a retailer may apply to the commissioner for a change to the petroleum product base wholesale or retail prices set under this section setting out in the application the reasons why, in the opinion of the applicant, the change is justified.

(5) The commissioner, after conducting the investigation he or she considers appropriate, and after holding a hearing, if he or she considers one is necessary, may set a new price that he or she considers just and reasonable in the circumstances.

(6) Where the commissioner sets prices under this section, a wholesaler or retailer shall not charge prices in excess of those prices and those prices shall remain in effect until changed under this section or section 6.

(7) This section does not apply to the sale of heating fuel by a wholesaler or a retailer.

Commencement

27. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.

 

 

 

 

 

 

 

 

 

 

 

 

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