First Session, Thirty-ninth Parliament,
55-56 Elizabeth II, 2006-2007
STATUTES OF CANADA 2007CHAPTER 19
An Act to amend the Canada Transportation Act and the Railway Safety Act and to make consequential amendments to other Acts
ASSENTED TO
22nd JUNE, 2007
BILL C-11
RECOMMENDATION
Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Canada Transportation Act and the Railway Safety Act and to make consequential amendments to other Acts”.
SUMMARY
This enactment amends the Canada Transportation Act. Certain amendments apply to all modes of transportation, including amendments that clarify the national transportation policy and the operation of the Competition Act in the transportation sector, change the number of members of the Canadian Transportation Agency, create a mediation process for transportation matters, modify requirements regarding the provision of information to the Minister of Transport and modify and extend provisions regarding mergers and acquisitions of air transportation undertakings to all transportation undertakings.
It amends the Act with respect to the air transportation sector, in particular, in relation to complaints processes, the advertising of prices for air services and the disclosure of terms and conditions of carriage.
The enactment also makes several amendments with respect to the railway transportation sector. It creates a mechanism for dealing with complaints concerning noise and vibration resulting from the construction or operation of railways and provisions for dealing with the transfer and discontinuance of operation of railway lines. It also establishes a mechanism for resolving disputes between public passenger service providers and railway companies regarding the use of railway company equipment and facilities.
The enactment also amends the Railway Safety Act to create provisions for the appointment of police constables with respect to railway companies and procedures for dealing with complaints concerning them.
In addition, it contains transitional provisions and consequential amendments.
Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
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55-56 ELIZABETH II
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CHAPTER 19
An Act to amend the Canada Transportation Act and the Railway Safety Act and to make consequential amendments to other Acts
[Assented to 22nd June, 2007]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1996, c. 10
CANADA TRANSPORTATION ACT
1. Subsection 4(2) of the Canada Transportation Act is replaced by the following:
Competition Act
(2) Subject to subsection (3), nothing in or done under the authority of this Act, other than Division IV of Part III, affects the operation of the Competition Act.
International agreements respecting air services
(3) In the event of any inconsistency or conflict between an international agreement or convention respecting air services to which Canada is a party and the Competition Act, the provisions of the agreement or convention prevail to the extent of the inconsistency or conflict.
2. Section 5 of the Act is replaced by the following:
Declaration
5. It is declared that a competitive, economic and efficient national transportation system that meets the highest practicable safety and security standards and contributes to a sustainable environment and makes the best use of all modes of transportation at the lowest total cost is essential to serve the needs of its users, advance the well-being of Canadians and enable competitiveness and economic growth in both urban and rural areas throughout Canada. Those objectives are most likely to be achieved when
(a) competition and market forces, both within and among the various modes of transportation, are the prime agents in providing viable and effective transportation services;
(b) regulation and strategic public intervention are used to achieve economic, safety, security, environmental or social outcomes that cannot be achieved satisfactorily by competition and market forces and do not unduly favour, or reduce the inherent advantages of, any particular mode of transportation;
(c) rates and conditions do not constitute an undue obstacle to the movement of traffic within Canada or to the export of goods from Canada;
(d) the transportation system is accessible without undue obstacle to the mobility of persons, including persons with disabilities; and
(e) governments and the private sector work together for an integrated transportation system.
2001, c. 27, s. 221
3. Subsection 7(2) of the Act is replaced by the following:
Composition of Agency
(2) The Agency shall consist of not more than five members appointed by the Governor in Council, and such temporary members as are appointed under subsection 9(1), each of whom must, on appointment or reappointment and while serving as a member, be a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.
4. Subsection 8(3) of the Act is replaced by the following:
Continuation in office
(3) If a member appointed under subsection 7(2) ceases to hold office, the Chairperson may authorize the member to continue to hear any matter that was before the member on the expiry of the member’s term of office and that member is deemed to be a member of the Agency, but that person’s status as a member does not preclude the appointment of up to five members under subsection 7(2) or up to three temporary members under subsection 9(1).
5. Subsection 18(2) of the Act is replaced by the following:
Residence of members
(2) The members shall reside in the National Capital Region described in the schedule to the National Capital Act or within any distance of it that the Governor in Council determines.
2002, c. 8, s. 122
6. Subsection 33(1) of the Act is replaced by the following:
Enforcement of decision or order
33. (1) A decision or order of the Agency may be made an order of the Federal Court or of any superior court and is enforceable in the same manner as such an order.
7. The Act is amended by adding the following after section 36:
Mediation
Request by parties
36.1 (1) If there is a dispute concerning a matter within the Agency’s jurisdiction, all the parties to the dispute may, by agreement, make a request to the Agency for mediation. On receipt of the request, the Agency shall refer the dispute for mediation.
Appointment of mediator
(2) When a dispute is referred for mediation, the Chairperson shall appoint one or two persons to mediate the dispute.
Mediator not to act in other proceedings
(3) A person who is appointed to mediate a dispute may not act in any other proceedings before the Agency in relation to that matter.
Confidentiality of mediation
(4) All matters relating to the mediation of a dispute shall be kept confidential, unless the parties to the dispute otherwise agree, and information provided by a party for the purposes of mediation shall not be used for any other purpose without the consent of that party.
Time limit for completion of mediation
(5) Unless the parties to a dispute otherwise agree, the mediation of the dispute shall be completed within 30 days after the dispute is referred for mediation.
Effect of mediation on proceedings
(6) The mediation has the effect of
(a) staying for the period of the mediation any proceedings before the Agency in so far as they relate to a matter that is the subject of the mediation; and
(b) extending the time within which the Agency may make a decision or determination under this Act with regard to those proceedings by the period of the mediation.
Filing of mediation agreement
(7) An agreement that is reached as a result of mediation may be filed with the Agency and, after filing, is enforceable as if it were an order of the Agency.
Mediation or Arbitration
Request by all parties
36.2 (1) If section 36.1 does not apply, the Agency may mediate or arbitrate a dispute relating to any railway matter covered under Part III or Part IV, or to the application of any rate or charge for the movement of goods by railways or for the provision of incidental services, if requested to do so by all parties to the dispute.
Reimbursement of costs
(2) The parties are jointly and severally, or solidarily, liable to reimburse the Agency its costs arising from the mediation or arbitration.
Mediator not to act in other proceedings
(3) The person who acts as mediator or arbitrator may not act in any other proceedings before the Agency in relation to any matter that was at issue in the mediation or arbitration.
8. (1) The portion of subsection 50(1) of the Act before paragraph (a) is replaced by the following:
Regulations re information
50. (1) The Governor in Council may make regulations requiring any persons referred to in subsection (1.1) who are subject to the legislative authority of Parliament to provide information, other than personal information as defined in section 3 of the Privacy Act, to the Minister, when and in the form and manner that the regulations may specify, for the purposes of
(2) Paragraph 50(1)(b) of the Act is replaced by the following:
(b) reporting under section 52;
(3) Paragraph 50(1)(d) of the Act is replaced by the following:
(d) any safety, security or subsidy program;
(4) Section 50 of the Act is amended by adding the following after subsection (1):
Persons referred to
(1.1) The persons for the purposes of subsection (1) are
(a) carriers;
(b) owners or operators of
(i) transportation undertakings,
(ii) transportation works, infrastructure, facilities or assets, and
(iii) grain handling undertakings;
(c) providers of services in relation to transportation, including
(i) the Canadian Air Transport Security Authority,
(ii) NAV CANADA, a corporation incorporated on May 26, 1995 under Part II of the Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970, and
(iii) Pilotage Authorities named in the schedule to the Pilotage Act;
(d) intermediaries involved in transportation movements who are specified in the regulations; and
(e) any other person or class of persons specified in the regulations.
9. The Act is amended by adding the following after section 50:
Information already provided
50.1 For the purposes of subsection 50(1), if any information referred to in that subsection has already been provided to a department or agency of the Government of Canada, the Minister may request that department or agency to provide the information to the Minister.
2000, c. 16, s. 2
10. (1) Subsection 51(2) of the Act is replaced by the following:
Administrative use of information
(2) Subsection (1) does not apply so as to prohibit
(a) the communication of information to the Agency or to a minister of the Crown in right of Canada, the agent of any such minister or an officer or employee of, or adviser to, Her Majesty in right of Canada for the purposes of the administration of this Act or any other Act of Parliament or for the purposes of the development of policies;
(b) the communication of information to persons referred to in paragraph 50(1.1)(c) that is necessary for them to carry out their duties and functions;
(c) the reporting of information in an aggregated form that prevents information obtained from an identifiable person from being related to that person;
(d) the communication of information by the Minister for the purpose of monitoring the grain transportation and handling system; or
(e) the communication of information that is available to, or ascertainable by, the public.
Terms and conditions
(2.1) The Minister may, with the approval of the Governor in Council, make regulations respecting the terms and conditions for the communication of information referred to in subsection (2).
(2) Section 51 of the Act is amended by adding the following after subsection (3):
Requirement for other persons to maintain confidentiality
(4) Any person who receives information from the Minister that is confidential under this Act shall not knowingly disclose that information and shall take the measures necessary to maintain its confidentiality.
11. (1) Subsection 52(1) of the Act is replaced by the following:
Industry overview
52. (1) Each year before the end of May, the Minister shall, using the most current information available, prepare and lay before both Houses of Parliament a report providing a brief overview of the state of transportation in Canada.
(2) Subsection 52(2) of the Act is replaced by the following:
Industry review
(2) Every five years, the report referred to in subsection (1) shall be expanded to a comprehensive review of the state of transportation in Canada which shall include
(a) the financial performance of each mode of transportation and its contribution to the Canadian economy;
(b) the extent to which carriers and modes of transportation were provided resources, facilities and services at public expense;
(c) the extent to which carriers and modes of transportation received compensation, indi­- rectly and directly, for the resources, facilities and services that were required to be provided as an imposed public duty;
(c.1) the long term outlook and trends in transportation in Canada; and
(d) any other transportation matters that the Minister considers appropriate.
12. (1) Subsections 53(1) and (2) of the Act are replaced by the following:
Statutory review
53. (1) The Minister shall, no later than eight years after the day this subsection comes into force, appoint one or more persons to carry out a comprehensive review of the operation of this Act and any other Act of Parliament for which the Minister is responsible that pertains to the economic regulation of a mode of transportation or to transportation activities under the legislative authority of Parliament.
Objective of review
(2) The person or persons conducting the review shall assess whether the legislation referred to in subsection (1) provides Canadians with a transportation system that is consistent with the national transportation policy set out in section 5 and, if necessary or desirable, may recommend amendments to
(a) the national transportation policy; and
(b) the legislation referred to in subsection (1).
(2) Subsection 53(5) of the Act is replaced by the following:
Report
(5) The review shall be completed and a report of the review submitted to the Minister within 18 months after the appointment referred to in subsection (1).
13. The Act is amended by adding the following after section 53:
Review of Mergers and Acquisitions
Notice
53.1 (1) Every person who is required to notify the Commissioner of Competition under subsection 114(1) of the Competition Act of a proposed transaction that involves a transportation undertaking shall, at the same time as the Commissioner is notified and, in any event, not later than the date by which the person is required to notify the Commissioner,
(a) give notice of the proposed transaction to the Minister; and
(b) in the case of a proposed transaction that involves an air transportation undertaking, also give notice of the transaction to the Agency.
Information
(2) A notice given to the Minister or to the Agency shall, subject to the regulations, contain the information required under subsection 114(1) of the Competition Act. The notice shall also contain any information with respect to the public interest as it relates to national transportation that is required under any guidelines that shall be issued and published by the Minister. After receipt of a notice, the Minister may require the person who has given the notice to provide further information.
Guidelines
(2.1) The guidelines referred to in subsection (2) shall be elaborated in consultation with the Competition Bureau and shall include factors that may be considered to determine whether a proposed transaction raises issues with respect to the public interest as it relates to national transportation.
Not statutory instruments
(3) The guidelines referred to in subsection (2) are not statutory instruments within the meaning of the Statutory Instruments Act.
No public interest issues
(4) If the Minister is of the opinion that the proposed transaction does not raise issues with respect to the public interest as it relates to national transportation, the Minister shall, within 42 days after a person gives notice under subsection (1), give notice of the opinion to that person, in which case sections 53.2 and 53.3 do not apply in respect of that transaction.
Public interest issues
(5) If the Minister is of the opinion that the proposed transaction raises issues with respect to the public interest as it relates to national transportation, the Minister may direct the Agency to examine those issues under section 49 or appoint and direct any person to examine those issues under section 7.1 of the Department of Transport Act.
Report
(6) The Agency or person, as the case may be, shall report to the Minister within 150 days after being directed under subsection (5), or within any longer period that the Minister may allow.
Prohibition
53.2 (1) No person shall complete a proposed transaction referred to in subsection 53.1(1) unless the transaction is approved by the Governor in Council and, in the case of a transaction that involves an air transportation undertaking, the Agency determines that the transaction would result in an undertaking that is Canadian as defined in subsection 55(1).
Commissioner’s report
(2) The Commissioner of Competition shall within 150 days after the Commissioner is notified of the proposed transaction under subsection 114(1) of the Competition Act, or within any longer period that the Minister may allow, report to the Minister and the parties to the transaction on any concerns regarding potential prevention or lessening of competition that may occur as a result of the transaction.
Report to be made public
(3) The report shall be made public immediately after its receipt by the Minister.
Concerns relating to public interest and competition
(4) After receipt of the Commissioner’s report and any report given under subsection 53.1(6), but before the Minister makes a recommendation for the purposes of subsection (7), the Minister shall
(a) consult with the Commissioner regarding any overlap between any concerns that the Minister has in respect of the proposed transaction with regard to the public interest as it relates to national transportation and any concerns in respect of the transaction that are raised in the Commissioner’s report; and
(b) request the parties to the transaction to address
(i) with the Minister any concerns that the Minister has in respect of the transaction with regard to the public interest as it relates to national transportation, and
(ii) with the Commissioner any concerns that the Commissioner has regarding potential prevention or lessening of competition that may occur as a result of the transaction.
Measures to address concerns
(5) The parties to the transaction shall
(a) after conferring with the Minister regarding concerns referred to in subparagraph (4)(b)(i), inform the Minister of any measures they are prepared to undertake to address those concerns; and
(b) after conferring with the Commissioner regarding concerns identified under subparagraph (4)(b)(ii), inform the Commissioner of any measures they are prepared to undertake to address those concerns.
The parties may propose revisions to the transaction.
Preconditions to recommendation
(6) Before making a recommendation for the purposes of subsection (7), the Minister shall obtain the Commissioner’s assessment of the adequacy of any undertaking proposed by the parties to address the concerns that have been identified under subparagraph (4)(b)(ii) and the effects of any proposed revisions to the transaction on those concerns.
Approval of Governor in Council
(7) If the Governor in Council is satisfied that it is in the public interest to approve the proposed transaction, taking into account any revisions to it proposed by the parties and any measures they are prepared to undertake, the Governor in Council may, on the recommendation of the Minister, approve the transaction and specify any terms and conditions that the Governor in Council considers appropriate. The Governor in Council shall indicate those terms and conditions that relate to potential prevention or lessening of competition and those that relate to the public interest as it relates to national transportation.
Variation of terms and conditions
(8) On application by a person who is subject to terms and conditions specified under subsection (7), the Governor in Council may, on the recommendation of the Minister, vary or rescind the terms and conditions. If the terms and conditions to be varied or rescinded affect competition, the Minister shall consult with the Commissioner before making the recommendation.
Commissioner’s representations
(9) If the Minister directs the Agency under section 49 to inquire into any matter or thing to assist the Minister in making a recommendation under subsection (7) or (8), the Agency shall give notice of the inquiry to the Commissioner and allow the Commissioner to make representations to the Agency.
Compliance with terms and conditions
(10) Every person who is subject to terms and conditions shall comply with them.
Canadian
53.3 The Agency shall determine whether a proposed transaction referred to in subsection 53.1(1) that involves an air transportation undertaking would result in an undertaking that is Canadian as defined in subsection 55(1).
Order of divestiture — application by Minister
53.4 (1) If a person contravenes subsection 53.2(1) or (10) with respect to a term or condition that relates to the public interest as it relates to national transportation, a superior court may, on application by the Minister, order the person to cease the contravention or do any thing that is required to be done, and may make any other order that it considers appropriate, including an order requiring the divestiture of assets. The Minister shall notify the Commissioner of Competition before making an application.
Order of divestiture — application by Commissioner
(2) If a person contravenes subsection 53.2(10) with respect to a term or condition that relates to potential prevention or lessening of competition, a superior court may, on application by the Commissioner, order the person to cease the contravention or do any thing that is required to be done, and may make any other order that it considers appropriate, including an order requiring the divestiture of assets. The Commissioner shall notify the Minister before making an application.
Regulations
53.5 The Governor in Council may, on the recommendation of the Minister, make regulations
(a) specifying information required in a notice under subsection 53.1(1); and
(b) exempting classes of transactions from the application of sections 53.1 to 53.3.
Offence — subsection 53.1(1)
53.6 (1) Every person who contravenes subsection 53.1(1) is guilty of an offence and is liable
(a) on conviction on indictment, to a fine not exceeding $50,000; or
(b) on summary conviction, to a fine not exceeding $25,000.
Offence — subsection 53.2(1) or (10)
(2) Every person who contravenes subsection 53.2(1) or (10) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding five years or to a fine not exceeding $10,000,000, or to both.
Continuing offence
(3) If an offence under subsection 53.2(10) is committed or continued on more than one day, the person who commits it is liable to be convicted for a separate offence for each day on which it is committed or continued.
Officers, etc., of corporations
(4) If a corporation commits an offence under subsection (1) or (2), any officer, director or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence whether or not the corporation has been prosecuted or convicted.
Sections 174 and 175 do not apply
(5) Sections 174 and 175 do not apply in respect of an offence committed under subsection (1) or (2).
14. (1) Subsection 56(1) of the Act is replaced by the following:
Non-application of Part
56. (1) This Part does not apply to a person that uses an aircraft on behalf of the Canadian Armed Forces or any other armed forces cooperating with the Canadian Armed Forces.
(2) Section 56 of the Act is amended by adding the following after subsection (2):
Emergency service exclusion
(3) This Part does not apply to the provision of an air service if the federal government or a provincial or a municipal government declares an emergency under federal or provincial law, and that government directly or indirectly requests that the air service be provided to respond to the emergency.
Public interest
(4) The Minister may, by order, prohibit the provision of an air service under subsection (3) or require the discontinuance of that air service if, in the opinion of the Minister, it is in the public interest to do so.
Not a statutory instrument
(5) The order is not a statutory instrument within the meaning of the Statutory Instruments Act.
2000, c. 15, s. 2
15. The heading before section 56.1 and sections 56.1 to 56.7 of the Act are repealed.
16. Section 59 of the Act is replaced by the following:
Prohibition re sale
59. No person shall sell, cause to be sold or publicly offer for sale in Canada an air service unless, if required under this Part, a person holds a licence issued under this Part in respect of that service and that licence is not suspended.
2000, c. 15, s. 3
17. Subsection 64(1.2) of the Act is replaced by the following:
Discussion with elected officials
(1.2) A licensee shall, as soon as practicable, provide an opportunity for elected officials of the municipal or local government of the community of the point or points, as the case may be, to meet and discuss with the licensee the impact of the proposed discontinuance or reduction.
18. Paragraph 65(a) of the Act is replaced by the following:
(a) for such a period, not exceeding 120 days after the date of the finding by the Agency, as the Agency deems appropriate; and
2000, c. 15, s. 4
19. (1) Subsection 66(2) of the French version of the Act is replaced by the following:
Gamme de prix insuffisante
(2) S’il conclut, sur dépôt d’une plainte, qu’un licencié, y compris les licenciés de son groupe, est la seule personne à offrir un service intérieur entre deux points, d’une part, et que celui-ci offre une gamme de prix ou de taux insuffisante à l’égard de ce service, d’autre part, l’Office peut, par ordonnance, enjoindre au licencié, pour la période qu’il estime indiquée dans les circonstances, de publier et d’appliquer à l’égard de ce service un ou plusieurs prix ou taux supplémentaires qu’il estime indiqués dans les circonstances.
2000, c. 15, s. 4
(2) The portion of subsection 66(3) of the Act before paragraph (a) is replaced by the following:
Relevant information
(3) When making a finding under subsection (1) or (2) that a fare, cargo rate or increase in a fare or cargo rate published or offered in respect of a domestic service between two points is unreasonable or that a licensee is offering an inadequate range of fares or cargo rates in respect of a domestic service between two points, the Agency may take into consideration any information or factor that it considers relevant, including
2000, c. 15, s. 4
(3) Paragraph 66(3)(b) of the Act is replaced by the following:
(b) fares or cargo rates applicable to similar domestic services offered by the licensee and one or more other licensees, including terms and conditions related to the fares or cargo rates, the number of seats available at those fares and the cargo capacity and cargo container types available at those rates;
2000, c. 15, s. 4
(4) Paragraph 66(3)(c) of the Act is replaced by the following:
(c) any other information provided by the licensee, including information that the licensee is required to provide under section 83.
2000, c. 15, s. 4
(5) Subsection 66(4) of the Act is replaced by the following:
Alternative domestic services
(4) The Agency may find that a licensee is the only person providing a domestic service between two points if every alternative domestic service between those points is, in the Agency’s opinion, unreasonable, taking into consideration the number of stops, the number of seats offered, the frequency of service, the flight connections and the total travel time and, more specifically, in the case of cargo, the cargo capacity and cargo container types available.
Alternative service
(4.1) The Agency shall not make an order under subsection (1) or (2) in respect of a licensee found by the Agency to be the only person providing a domestic service between two points if, in the Agency’s opinion, there exists another domestic service that is not between the two points but is a reasonable alternative taking into consideration the conven­ience of access to the service, the number of stops, the number of seats offered, the frequency of service, the flight connections and the total travel time and, more specifically, in the case of cargo, the cargo capacity and cargo container types available.
2000, c. 15, s. 4
(6) Subsections 66(6) and (7) of the Act are repealed.
20. Paragraph 67(1)(a) of the Act is replaced by the following:
(a) display in a prominent place at the business offices of the licensee a sign indicating that the tariffs for the domestic service offered by the licensee, including the terms and conditions of carriage, are available for public inspection at the business offices of the licensee, and allow the public to make such inspections;
(a.1) publish the terms and conditions of carriage on any Internet site used by the licensee for selling the domestic service offered by the licensee;
2000, c. 15, s. 6
21. The portion of section 67.1 of the Act before paragraph (a) is replaced by the following:
Fares or rates not set out in tariff
67.1 If, on complaint in writing to the Agency by any person, the Agency finds that, contrary to subsection 67(3), the holder of a domestic licence has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may order the licensee to
2000, c. 15, s. 6
22. Subsection 67.2(1) of the French version of the Act is replaced by the following:
Conditions déraisonnables
67.2 (1) S’il conclut, sur dépôt d’une plainte, que le titulaire d’une licence intérieure a appliqué pour un de ses services intérieurs des conditions de transport déraisonnables ou injustement discriminatoires, l’Office peut suspendre ou annuler ces conditions et leur en substituer de nouvelles.
2000, c. 15, s. 7
23. Subsection 68(1) of the Act is replaced by the following:
Non-application of fares, etc.
68. (1) Sections 66 to 67.2 do not apply in respect of fares, rates or charges applicable to a domestic service provided for under a contract between a holder of a domestic licence and another person whereby the parties to the contract agree to keep its provisions confidential.
Non-application of terms and conditions
(1.1) Sections 66 to 67.2 do not apply in respect of terms and conditions of carriage applicable to a domestic service provided for under a contract referred to in subsection (1) to which an employer is a party and that relates to travel by its employees.
24. The Act is amended by adding the following after section 75:
Issuance of International Charter Permits
Issuance, amendment and cancellation of permits
75.1 The issuance of a permit for the operation of an international charter to a licensee and the amendment or cancellation of the permit shall be made in accordance with regulations made under paragraph 86(1)(e).
2000, c. 15, s. 7.1
25. Section 85.1 of the Act and the heading before it are replaced by the following:
Air Travel Complaints
Review and mediation
85.1 (1) If a person has made a complaint under any provision of this Part, the Agency, or a person authorized to act on the Agency’s behalf, shall review and may attempt to resolve the complaint and may, if appropriate, mediate or arrange for mediation of the complaint.
Report
(2) The Agency or a person authorized to act on the Agency’s behalf shall report to the parties outlining their positions regarding the complaint and any resolution of the complaint.
Complaint not resolved
(3) If the complaint is not resolved under this section to the complainant’s satisfaction, the complainant may request the Agency to deal with the complaint in accordance with the provisions of this Part under which the complaint has been made.
Further proceedings
(4) A member of the Agency or any person authorized to act on the Agency’s behalf who has been involved in attempting to resolve or mediate the complaint under this section may not act in any further proceedings before the Agency in respect of the complaint.
Extension of time
(5) The period of 120 days referred to in subsection 29(1) shall be extended by the period taken by the Agency or any person authorized to act on the Agency’s behalf to review and attempt to resolve or mediate the complaint under this section.
Part of annual report
(6) The Agency shall, as part of its annual report, indicate the number and nature of the complaints filed under this Part, the names of the carriers against whom the complaints were made, the manner complaints were dealt with and the systemic trends observed.
2000, c. 15, s. 8
26. (1) Paragraph 86(1)(h) of the Act is amended by striking out the word “and” at the end of subparagraph (ii) and by replacing subparagraph (iii) with the following:
(iii) authorizing the Agency to direct a licensee or carrier to take corrective measures that the Agency considers appropriate and to pay compensation for any expense incurred by a person adversely affected by the licensee’s or carrier’s failure to apply the fares, rates, charges or terms or conditions of carriage applicable to the service it offers that were set out in its tariffs, and
(iv) requiring a licensee or carrier to display the terms and conditions of carriage for its international service on its Internet site, if the site is used for selling the international service of the licensee or carrier;
(2) Paragraph 86(1)(j) of the Act is replaced by the following:
(j) requiring licensees to include in contracts or arrangements with travel wholesalers, tour operators, charterers or other persons associated with the provision of air services to the public, or to make those contracts and arrangements subject to, terms and conditions specified or referred to in the regulations;
(3) Subsection 86(3) of the Act is repealed.
27. The Act is amended by adding the following after section 86:
Advertising regulations
86.1 (1) The Agency shall make regulations respecting advertising in all media, including on the Internet, of prices for air services within, or originating in, Canada.
Contents of regulations
(2) Without limiting the generality of subsection (1), regulations shall be made under that subsection requiring a carrier who advertises a price for an air service to include in the price all costs to the carrier of providing the service and to indicate in the advertisement all fees, charges and taxes collected by the carrier on behalf of another person in respect of the service, so as to enable a purchaser of the service to readily determine the total amount to be paid for the service.
Regulations may prescribe
(3) Without limiting the generality of subsection (1), the regulations may prescribe what are costs, fees, charges and taxes for the purposes of subsection (2).
Regulations and orders
86.2 A regulation or order made under this Part may be conditional or unconditional or qualified or unqualified and may be general or restricted to a specific area, person or thing or group or class of persons or things.
28. Section 87 of the Act is amended by adding the following in alphabetical order:
“metropolitan area”« région métropolitaine »
“metropolitan area” means any area that is classified by Statistics Canada in its most recent census of Canada as a census metropolitan area;
“public passenger service provider”« société de transport publique »
“public passenger service provider” means VIA Rail Canada Inc., a passenger rail service provider designated by the Minister or an urban transit authority;
“urban transit authority”« administration de transport de banlieue »
“urban transit authority” means an entity owned or controlled by the federal government or a provincial, municipal or district government that provides commuter services.
29. The Act is amended by adding the following after section 95:
Noise and Vibration
Obligation
95.1 When constructing or operating a railway, a railway company shall cause only such noise and vibration as is reasonable, taking into account
(a) its obligations under sections 113 and 114, if applicable;
(b) its operational requirements; and
(c) the area where the construction or operation takes place.
Guidelines
95.2 (1) The Agency shall issue, and publish in any manner that it considers appropriate, guidelines with respect to
(a) the elements that the Agency will use to determine whether a railway company is complying with section 95.1; and
(b) the collaborative resolution of noise and vibration complaints relating to the construction or operation of railways.
Consultations
(2) The Agency must consult with interested parties, including municipal governments, before issuing any guidelines.
Not statutory instruments
(3) The guidelines are not statutory instruments within the meaning of the Statutory Instruments Act.
Complaints and investigations
95.3 (1) On receipt of a complaint made by any person that a railway company is not complying with section 95.1, the Agency may order the railway company to undertake any changes in its railway construction or operation that the Agency considers reasonable to ensure compliance with that section.
Restriction
(2) If the Agency has published guidelines under paragraph 95.2(1)(b), it must first satisfy itself that the collaborative measures set out in the guidelines have been exhausted in respect of the noise or vibration complained of before it conducts any investigation or hearing in respect of the complaint.
Public passenger service providers
95.4 Sections 95.1 to 95.3 apply, with any modifications that are necessary, to public passenger service providers.
1999, c. 31, ss. 37(E) and 38(E)
30. Section 104 of the Act and the heading before it are replaced by the following:
Security
Deposit of mortgage, hypothec or security agreement
104. (1) The following may, in accordance with the regulations, be deposited by any person in the office of the Registrar General of Canada or in any other place that the Governor in Council may, by order, specify:
(a) a mortgage or hypothec issued by a railway company;
(b) a security agreement entered into by a railway company;
(c) an assignment or other document affecting a document referred to in paragraph (a) or (b); or
(d) a copy of any document referred to in any of paragraphs (a) to (c) or a summary of any such document made in accordance with regulations made under section 105.1.
Effect of deposit
(2) Once the deposit is made, the mortgage or hypothec, security agreement, assignment or other document need not be deposited, registered or filed under any other law or statute respecting real or personal property, and the deposited document is valid against all persons.
31. (1) Subsections 105(1) and (2) of the Act are replaced by the following:
Deposit of documents
105. (1) A document, or a copy or summary of a document, evidencing any of the following transactions may, in accordance with the regulations, be deposited by any person in the office of the Registrar General of Canada or in any other place that the Governor in Council may, by order, specify:
(a) a lease, sale, conditional sale, instalment sale, mortgage, hypothec, bailment, leasing, deposit or security agreement relating to rolling stock or any accessories or appurtenances relating to rolling stock; and
(b) an amendment, assignment or discharge of a document mentioned in paragraph (a).
(2) Subsection 105(4) of the Act is repealed.
32. The Act is amended by adding the following after section 105:
Regulations
Regulations
105.1 The Governor in Council may make regulations respecting
(a) the depositing of copies of documents under sections 104 and 105;
(b) the form and content of summaries to be deposited under those sections; and
(c) the effects, in Canada, of the deposit, registration or filing in other countries of documents evidencing any transaction referred to in paragraph 105(1)(a) or of documents evidencing amendments, assignments or discharges of those documents.
33. Subsections 106(5) and (6) of the Act are replaced by the following:
Limitation
(5) No order of the Federal Court or any other court restraining action against the railway company affects any right or remedy of a person in respect of, including the right to take possession of, the rolling stock, or any accessories or appurtenances relating to the rolling stock, of the company as a creditor under a security agreement, mortgage or hypothec or as a bailor, depositary, lessor or vendor under a conditional sale or an instalment sale, whether as trustee or otherwise, unless
(a) within 60 days after filing the scheme of arrangement, or any extended period to which the person may agree, the railway company agrees to perform all its obligations under the security agreement, mortgage, hypothec, bailment, leasing, deposit, lease, conditional sale agreement or instalment sale agreement, as the case may be;
(b) any event that occurred before or after the scheme was filed and that constitutes a default under the security agreement, mortgage, hypothec, bailment, leasing, deposit, lease, conditional sale agreement or instalment sale agreement, as the case may be, is cured before the later of
(i) 30 days after the event, and
(ii) the end of the period referred to in paragraph (a); and
(c) any event that occurred on or after the expiry of the period referred to in paragraph (a) and that constitutes a default under the security agreement, mortgage, hypothec, bailment, leasing, deposit, lease, conditional sale agreement or instalment sale agreement, as the case may be, is cured in accordance with that instrument or act.
Extension of 60-day period
(6) An extension of the 60-day period under paragraph (5)(a) does not prejudice the right to take possession of, or any other right or remedy in respect of, the rolling stock or the accessories or appurtenances relating to the rolling stock.
34. (1) Subsection 108(2) of the Act is repealed.
(2) Subsection 108(5) of the Act is repealed.
2000, c. 16, s. 5(2)
35. Subsection 141(3) of the Act is replaced by the following:
Notification of changes
(2.1) Whenever the railway company makes a change to the plan, it shall notify the following of the change within 10 days after the change:
(a) the Minister;
(b) the Agency;
(c) the minister responsible for transportation matters in the government of each province through which the railway line passes;
(d) the chairperson of every urban transit authority through whose territory the railway line passes; and
(e) the clerk or other senior administrative officer of every municipal or district government through which the railway line passes.
When sale, etc., permitted
(3) Subject to section 144.1, a railway company may sell, lease or otherwise transfer its railway lines, or its operating interest in its lines, for continued operation.
36. Subsections 143(3) and (4) of the Act are replaced by the following:
Disclosure of agreement with public passenger service provider
(3) The advertisement must also disclose the existence of any agreement between the railway company and a public passenger service provider in respect of the operation of a passenger rail service on the railway line.
37. Subsection 144(2) of the Act is repealed.
38. The Act is amended by adding the following after section 144:
Rights and obligations under passenger service agreements continued
144.1 (1) If a railway line, or a railway company’s operating interest in a railway line, is sold, leased or otherwise transferred under subsection 141(3) or as the result of an advertisement under subsection 143(1) and, before the day such advertisement was made, an agreement was in force between the railway company and a public passenger service provider in respect of the operation of a passenger rail service on the railway line, the rights and obligations of the railway company under the agreement in respect of the operation of that service on that line vest, as of the day the transfer takes place, in the person or entity to which the railway line, or the operating interest, is transferred, unless the public passenger service provider indicates otherwise before that day.
Declaration that line is for general advantage of Canada
(2) Whenever a railway company’s rights and obligations under an agreement with VIA Rail Canada Inc. are vested in another person or entity by subsection (1), the portion of the railway line to which the agreement relates is hereby declared, as of the day the transfer takes place, to be a work for the general advantage of Canada.
Duration of declaration
(3) The declaration referred to in subsection (2) ceases to have effect if
(a) VIA Rail Canada Inc. ceases to operate a passenger rail service on the portion of railway line to which the declaration relates; or
(b) the operation of the railway line is discontinued.
39. (1) The portion of subsection 145(1) of the Act before paragraph (a) is replaced by the following:
Offer to governments
145. (1) The railway company shall offer to transfer all of its interest in the railway line to the governments and urban transit authorities mentioned in this section for not more than its net salvage value to be used for any purpose if
(2) Subsection 145(2) of the Act is replaced by the following:
Which governments receive offer
(2) After the requirement to make the offer arises, the railway company shall send it simultaneously
(a) to the Minister if the railway line passes through
(i) more than one province or outside Canada,
(ii) land that is or was a reserve, as defined in subsection 2(1) of the Indian Act,
(iii) land that is the subject of an agreement entered into by the railway company and the Minister for the settlement of aboriginal land claims, or
(iv) a metropolitan area;
(b) to the minister responsible for transportation matters in the government of each province through which the railway line passes;
(c) to the chairperson of every urban transit authority through whose territory the railway line passes; and
(d) to the clerk or other senior administrative officer of every municipal or district government through whose territory the railway line passes.
(3) The portion of subsection 145(3) of the Act before paragraph (a) is replaced by the following:
Time limits for acceptance
(3) Subject to subsection 146.3(3), after the offer is received
(4) Subsection 145(3) of the Act is amended by striking out the word “and” at the end of paragraph (b) and by replacing paragraph (c) with the following:
(b.1) by an urban transit authority, it may accept it within an additional 30 days after the end of the period or periods for acceptance under paragraphs (a) and (b), if it is not accepted under those paragraphs; and
(c) by a municipal or district government, it may accept it within an additional 30 days after the end of the period or periods for acceptance under paragraphs (a), (b) and (b.1), if it is not accepted under those paragraphs.
(5) Subsections 145(4) and (5) of the Act are replaced by the following:
Communication and notice of acceptance
(4) Once a government or an urban transit authority communicates its written acceptance of the offer to the railway company, the right of any other government or urban transit authority to accept the offer is extinguished, and the railway company must notify the other governments and urban transit authorities of the acceptance.
Net salvage value
(5) If a government or an urban transit authority accepts the offer, but cannot agree with the railway company on the net salvage value within 90 days after the acceptance, the Agency may, on the application of the government or urban transit authority or the railway company, determine the net salvage value.
40. Section 146 of the Act is replaced by the following:
Discontinuation
146. (1) If a railway company has complied with the process set out in sections 143 to 145, but an agreement for the sale, lease or other transfer of the railway line or an interest in it is not entered into through that process, the railway company may discontinue operating the line on providing notice of the discontinuance to the Agency. After providing the notice, the railway company has no obligations under this Act in respect of the operation of the railway line and has no obligations with respect to any operations by any public passenger service provider over the railway line.
No obligation
(2) If the railway line, or any interest of the railway company in it, is sold, leased or otherwise transferred by an agreement entered into through the process set out in sections 143 to 145 or otherwise, the railway company that conveyed the railway line has no obligations under this Act in respect of the operation of the railway line as and from the date the sale, lease or other transfer was completed and has no obligations with respect to any operations by any public passenger service provider over the railway line as and from that date.
2000, c. 16, s. 8
41. Section 146.1 of the French version of the Act is replaced by the following:
Indemnisation
146.1 La compagnie de chemin de fer qui cesse d’exploiter un embranchement tributaire du transport du grain mentionné à l’annexe I, ou une partie d’un tel embranchement, passant dans une municipalité fait à celle-ci trois versements annuels à compter de la date où elle avise l’Office en application du paragraphe 146(1). Chaque versement est égal au produit de 10 000 $ et du nombre de milles de l’embranchement ou de la partie d’embranchement situés dans le territoire de la municipalité.
42. The Act is amended by adding the following after section 146.1:
List of metropolitan sidings and spurs to be dismantled
146.2 (1) A railway company shall prepare and keep up to date a list of its sidings and spurs that it plans to dismantle and that are located in metropolitan areas or within the territory served by any urban transit authority, except for sidings and spurs located on a railway right-of-way that will continue to be used for railway operations subsequent to their dismantlement.
Publication of list and notification of changes
(2) The railway company shall publish the list on its Internet site and, whenever it makes a change to the list, it shall notify the following of the change within 10 days after the change:
(a) the Minister;
(b) the Agency;
(c) the minister responsible for transportation matters in the government of the province in which the siding or spur that is the subject of the change is located;
(d) the chairperson of the urban transit authority in whose territory the siding or spur that is the subject of the change is located; and
(e) the clerk or other senior administrative officer of the municipal or district government in which the siding or spur that is the subject of the change is located.
Limitation
(3) A railway company shall not take steps to dismantle a siding or a spur until at least 12 months have elapsed since the siding or spur was added to the list.
Offer to governments
(4) Before dismantling a siding or a spur that has been on the list for at least 12 months, a railway company shall send simultaneously to each of the following an offer to transfer all of its interest in the siding or spur for not more than its net salvage value:
(a) the Minister;
(b) the minister responsible for transportation matters in the government of the province in which the siding or spur is located;
(c) the chairperson of the urban transit authority in whose territory the siding or spur is located; and
(d) the clerk or other senior administrative officer of the municipal or district government in which the siding or spur is located.
Time limits for acceptance
(5) Subject to subsection 146.3(3), after the offer is received
(a) by the Minister, the Government of Canada may accept it within 30 days;
(b) by the provincial minister, the government of the province may accept it within an additional 30 days after the end of the period mentioned in paragraph (a) if it is not accepted under that paragraph;
(c) by the chairperson of an urban transit authority, that authority may accept it within an additional 30 days after the end of the periods for acceptance under paragraphs (a) and (b), if it is not accepted under those paragraphs; and
(d) by the clerk or other senior administrative officer of a municipal or district government, that government may accept it within an additional 30 days after the end of the periods for acceptance under paragraphs (a), (b) and (c), if it is not accepted under those paragraphs.
Communication and notice of acceptance
(6) Once a government or an urban transit authority communicates its written acceptance of the offer to the railway company, the right of any other government or urban transit authority to accept the offer is extinguished, and the railway company shall notify the other governments and urban transit authorities of the acceptance.
Net salvage value
(7) If a government or an urban transit authority accepts the offer, but cannot agree with the railway company on the net salvage value within 90 days after the acceptance, the Agency may, on the application of the government, the urban transit authority or the railway company, determine the net salvage value.
Dismantling permitted
(8) If the offer is not accepted, the railway company may dismantle the siding or spur on providing notice to the Agency.
Determination of net salvage value before expiry of time to accept offer
146.3 (1) A person to whom a railway line is offered under section 145, or to whom a siding or spur is offered under section 146.2, may apply to the Agency for a determination of the net salvage value of the railway line, siding or spur, as the case may be, at any time before the expiry of the period available to the person to accept the offer.
Notification of application
(2) The applicant shall without delay provide a copy of the application to the railway company, and the railway company shall without delay notify every other person to whom the offer was made and whose time to accept the offer has not expired that an application for a determination of the net salvage value was made.
Effect of application
(3) If an application is made under subsection (1), the time available to the applicant to accept the offer expires on the day that is 30 days after the day the Agency notifies the applicant of its determination of the net salvage value and the 30-day period for each other person to accept the offer is calculated on the expiry of the period available to the applicant to accept the offer.
Costs
(4) The applicant shall reimburse the Agency’s costs associated with the application.
Railway rights of way
146.4 Sections 146.2 and 146.3 apply, with any modifications that are necessary, to railway rights-of-way, that are located in metropolitan areas or within the territory served by any urban transit authority and in respect of which the sidings and spurs have been dismantled, that a railway company plans to sell, lease or otherwise transfer.
Passenger railway stations
146.5 Sections 146.2 and 146.3 apply, with any modifications that are necessary, to passenger railway stations in Canada that a railway company plans to sell, lease or otherwise transfer or dismantle.
2000, c. 16, s. 10
43. (1) Paragraph 151(4)(c) of the Act is replaced by the following:
(c) the Agency shall make adjustments to the index to reflect the costs incurred by the prescribed railway companies for the purpose of obtaining cars as a result of the sale, lease or other disposal or withdrawal from service of government hopper cars and the costs incurred by the prescribed railway companies for the maintenance of cars that have been so obtained.
(2) Section 151 of the Act is amended by adding the following after subsection (5):
Making of adjustments
(6) Despite subsection (5), the Agency shall make the adjustments referred to in paragraph (4)(c) at any time that it considers appropriate and determine the date when the adjusted index takes effect.
44. The Act is amended by adding the following after section 152:
Division VI.1
Public Passenger Service Providers
Dispute Resolution
Application
152.1 (1) Whenever a public passenger serv­ice provider and a railway company are unable to agree in respect of any matter raised in the context of the negotiation of any agreement concerning the use of the railway company’s railway, land, equipment, facilities or services by the public passenger service provider or concerning the conditions, or the amount to be paid, for that use, the public passenger service provider may, after reasonable efforts to resolve the matter have been made, apply to the Agency to decide the matter.
Application
(2) Whenever a public passenger service provider and a railway company are unable to agree in respect of any matter raised in the context of the implementation of any matter previously decided by the Agency, either the public passenger service provider or the railway company may, after reasonable efforts to resolve the matter have been made, apply to the Agency to decide the matter.
Amount to be fixed
152.2 (1) If, pursuant to an application made under subsection 152.1(1), the Agency fixes the amount to be paid by the public passenger service provider for the use of any of the railway company’s railway, land, equipment, facilities or services, that amount must reflect the cost associated with the public passenger service provider’s use of that railway, land or equipment or those facilities or services.
Factors
(2) In determining that amount, the Agency must take into consideration, among other things,
(a) the variable costs incurred by the railway company as a result of the public passenger service provider’s use of the railway company’s railway, land, equipment, facilities or services, including, but not limited to, its variable costs incurred to maintain safe operations and to avoid congestion and undue delay;
(b) the railway company’s cost of capital, based on a rate set by the Agency, applied to the net book value of the assets to be used by the public passenger service provider, less any amount to be paid by the public passenger service provider in respect of those assets;
(c) the cost of any improvements made by the railway company in relation to the public passenger service provider’s use of the railway company’s railway, land, equipment, facilities or services;
(d) a reasonable contribution towards the railway company’s constant costs; and
(e) the value of any benefits that would accrue to the railway company from any investment made by the public passenger service provider.
Duration of decision
152.3 Any decision of the Agency in respect of an application made under subsection 152.1(1) is binding on the parties for a period of five years after the day on which the decision is made, or for any other period agreed to by the parties that is specified in the decision.
Agreements
Providing copies
152.4 (1) A railway company or a public passenger service provider must provide to any person who requests it
(a) a copy of any agreement entered into on or after the day on which this section comes into force concerning the use of the railway company’s railway, land, equipment, facilities or services; and
(b) subject to subsection (2), a copy of any agreement entered into before the day on which this section comes into force concerning the use of the railway company’s railway, land, equipment, facilities or services.
Exclusion
(2) The Agency may, on application by a railway company or a public passenger service provider, exclude an agreement, or any specified portion of an agreement, from the application of paragraph (1)(b) on the grounds that harm would likely result to the applicant if the agreement, or the specified portion, were to be disclosed.
45. The Act is amended by adding the following after section 157:
Agreements
46. Subsection 157.1(1) of the Act is replaced by the following:
Agreements to apply transportation law to provincial railways
157.1 (1) The Minister may enter into an agreement with a provincial minister responsible for transportation matters providing for the administration, in relation to persons who operate railways within the legislative authority of the province, of any law respecting:
(a) railway safety, accident investigation and railway crossings; or
(b) railway noise or the regulation of the rates and conditions of service of railway companies to the extent that those matters are governed by this Act.
47. Section 158 of the Act and the heading before it are replaced by the following:
Agreements made with provincial authorities
158. The Minister may enter into an agreement with a provincial authority to authorize the provincial authority to regulate the construction, operation and safety of a railway as well as the rates and conditions of service in the same manner and to the same extent as it may regulate a railway within its jurisdiction.
48. The Act is amended by adding the following after the heading “Administra- tive Monetary Penalties” before section 177:
Definition of “Tribunal”
176.1 For the purposes of sections 180.1 to 180.7, “Tribunal” means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act.
49. (1) The portion of section 177 of the Act before paragraph (a) is replaced by the following:
Regulations by Agency
177. (1) The Agency may, by regulation,
(2) Paragraph 177(1)(b) of the French version of the Act is replaced by the following:
b) prévoir le montant maximal — plafonné, dans le cas des personnes physiques, à 5 000 $ et, dans le cas des personnes morales, à 25 000 $ — de la sanction applicable à chaque contravention à un texte ainsi désigné.
(3) Section 177 of the Act is amended by adding the following after subsection (1):
Regulations by Minister
(2) The Minister may, by regulation,
(a) designate as a provision or requirement the contravention of which may be proceeded with as a violation in accordance with sections 179 and 180 any provision of section 51 or of any regulation made under section 50 or 51, or any requirement of any of those provisions; and
(b) prescribe the maximum amount payable for each violation, but the amount shall not exceed
(i) $5,000, in the case of an individual, and
(ii) $25,000, in the case of a corporation.
50. (1) The portion of subsection 178(1) of the Act before paragraph (a) is replaced by the following:
Notices of violation
178. (1) The Agency, in respect of a violation referred to in subsection 177(1), or the Minister, in respect of a violation referred to in subsection 177(2), may
(2) Subsection 178(3) of the French version of the Act is replaced by the following:
Certificat
(3) Chaque agent reçoit un certificat établi en la forme fixée par l’Office ou le ministre, selon le cas, et attestant sa qualité, qu’il présente sur demande à la personne à qui il veut demander des renseignements.
51. Subsection 179(1) of the French version of the Act is replaced by the following:
Violation
179. (1) Toute contravention à un texte désigné au titre de l’article 177 constitue une violation pour laquelle le contrevenant s’expose à la sanction établie conformément à cet article.
2001, c. 29, s. 52
52. Section 180 of the Act is replaced by the following:
Issuance of notice of violation
180. If a person designated as an enforcement officer under paragraph 178(1)(a) believes that a person has committed a violation, the enforcement officer may issue and serve on the person a notice of violation that names the person, identifies the violation and sets out
(a) the penalty, established in accordance with the regulations made under section 177, for the violation that the person is liable to pay; and
(b) the particulars concerning the time for paying and the manner of paying the penalty.
Option
180.1 A person who has been served with a notice of violation must either pay the amount of the penalty specified in the notice or file with the Tribunal a written request for a review of the facts of the alleged contravention or of the amount of the penalty.
Payment of specified amount precludes further proceedings
180.2 If a person who is served with a notice of violation pays the amount specified in the notice in accordance with the particulars set out in it, the Minister shall accept the amount as and in complete satisfaction of the amount of the penalty for the contravention by that person of the designated provision and no further proceedings under this Part shall be taken against the person in respect of that contravention.
Request for review of determination
180.3 (1) A person who is served with a notice of violation and who wishes to have the facts of the alleged contravention or the amount of the penalty reviewed shall, on or before the date specified in the notice or within any further time that the Tribunal on application may allow, file a written request for a review with the Tribunal at the address set out in the notice.
Time and place for review
(2) On receipt of a request filed under subsection (1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.
Review procedure
(3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Burden of proof
(4) The burden of establishing that a person has contravened a designated provision is on the Minister.
Person not compelled to testify
(5) A person who is alleged to have contravened a designated provision is not required, and shall not be compelled, to give any evidence or testimony in the matter.
Certificate
180.4 If a person neither pays the amount of the penalty in accordance with the particulars set out in the notice of violation nor files a request for a review under subsection 180.3(1), the person is deemed to have committed the contravention alleged in the notice, and the Minister may obtain from the Tribunal a certificate in the form that may be established by the Governor in Council that indicates the amount of the penalty specified in the notice.
Determination by Tribunal member
180.5 If, at the conclusion of a review under section 180.3, the member of the Tribunal who conducts the review determines that
(a) the person has not contravened the designated provision that the person is alleged to have contravened, the member of the Tribunal shall without delay inform the person and the Minister of the determination and, subject to section 180.6, no further proceedings under this Part shall be taken against the person in respect of the alleged contravention; or
(b) the person has contravened the designated provision that the person is alleged to have contravened, the member of the Tribunal shall without delay inform the person and the Minister of the determination and, subject to any regulations made under section 177, of the amount determined by the member of the Tribunal to be payable by the person in respect of the contravention and, if the amount is not paid to the Tribunal by or on behalf of the person within the time that the member of the Tribunal may allow, the member of the Tribunal shall issue to the Minister a certificate in the form that may be established by the Governor in Council, setting out the amount required to be paid by the person.
Right of appeal
180.6 (1) The Minister or a person affected by a determination made under section 180.5 may, within 30 days after the determination, appeal it to the Tribunal.
Loss of right of appeal
(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.
Disposition of appeal
(3) The appeal panel of the Tribunal assigned to hear the appeal may dispose of the appeal by dismissing it or allowing it and, in allowing the appeal, the panel may substitute its decision for the determination appealed against.
Certificate
(4) If the appeal panel finds that a person has contravened the designated provision, the panel shall without delay inform the person of the finding and, subject to any regulations made under section 177, of the amount determined by the panel to be payable by the person in respect of the contravention and, if the amount is not paid to the Tribunal by or on behalf of the person within the time allowed by the Tribunal, the Tribunal shall issue to the Minister a certificate in the form that may be established by the Governor in Council, setting out the amount required to be paid by the person.
Registration of certificate
180.7 (1) If the time limit for the payment of an amount determined by the Minister in a notice of violation has expired, the time limit for the request for a review has expired, the time limit for an appeal has expired, or an appeal has been disposed of, on production in any superior court, a certificate issued under section 180.4, paragraph 180.5(b) or subsection 180.6(4) shall be registered in the court. When it is registered, a certificate has the same force and effect, and proceedings may be taken in connection with it, as if it were a judgment in that court obtained by Her Majesty in right of Canada against the person named in the certificate for a debt of the amount set out in the certificate.
Recovery of costs and charges
(2) All reasonable costs and charges attend­ant on the registration of the certificate are recoverable in like manner as if they had been certified and the certificate had been registered under subsection (1).
Amounts received deemed public moneys
(3) An amount received by the Minister or the Tribunal under this section is deemed to be public money within the meaning of the Financial Administration Act.
References to “Minister”
180.8 (1) In the case of a violation referred to in subsection 177(1), every reference to the “Minister” in sections 180.3 to 180.7 shall be read as a reference to the Agency or to a person designated by the Agency.
Delegation by Minister
(2) In the case of a violation referred to in subsection 177(2), the Minister may delegate to the Agency any power, duty or function conferred on the Minister under this Part.
R.S., c. 32 (4th Supp.)
RAILWAY SAFETY ACT
2002, c. 8, s. 168
53. Subsection 34(1) of the Railway Safety Act is replaced by the following:
Enforcement through court
34. (1) An order or emergency directive made by the Minister may be made an order of the Federal Court or of any superior court, and shall be enforced in the same manner as an order of the court.
54. The Act is amended by adding the following after section 43:
PART IV.1
POLICE CONSTABLES
Appointment
44. (1) A judge of a superior court may appoint a person as a police constable for the enforcement of Part III of the Canada Transportation Act and for the enforcement of the laws of Canada or a province in so far as their enforcement relates to the protection of property owned, possessed or administered by a railway company and the protection of persons and property on that property.
Limitation
(2) The appointment may only be made on the application of a railway company that owns, possesses or administers property located within the judge’s jurisdiction.
Jurisdiction
(3) The police constable has jurisdiction on property under the administration of the railway company and in any place within 500 m of property that the railway company owns, possesses or administers.
Power to take persons before a court
(4) The police constable may take a person charged with an offence under Part III of the Canada Transportation Act, or any law referred to in subsection (1), before a court that has jurisdiction in such cases over any area where property owned, possessed or administered by the railway company is located, whether or not the person was arrested, or the offence occurred or is alleged to have occurred, within that area.
Court’s jurisdiction
(5) The court must deal with the person as though the person had been arrested, and the offence had occurred, within the area of the court’s jurisdiction, but the court may not deal with the person if the offence is alleged to have occurred outside the province in which the court is sitting.
Dismissal or discharge of police constable
(6) A superior court judge referred to in subsection (1) or the railway company may dismiss or discharge the police constable and the dismissal or discharge terminates the powers, duties and privileges conferred on the constable by this section.
Procedures for dealing with complaints
44.1 (1) If one or more police constables are appointed with respect to a railway company, the railway company must
(a) establish procedures for dealing with complaints concerning police constables;
(b) designate one or more persons to be responsible for implementing the procedures; and
(c) designate one or more persons to receive and deal with the complaints.
Procedures to be filed with Minister
(2) The railway company must file with the Minister a copy of its procedures for dealing with complaints and must implement any recommendations made by the Minister, including recommendations concerning how the procedures are to be made public.
TRANSITIONAL PROVISIONS
Agreements entered into prior to the coming into force of section 44
55. (1) Section 152.1 of the Canada Transportation Act, as enacted by section 44 of this Act, does not apply in respect of agreements entered into before the day on which section 44 of this Act comes into force.
Exception
(2) Despite subsection (1), in the case of an agreement between VIA Rail Canada Inc. and a railway company that was entered into before the day on which section 44 of this Act comes into force, Via Rail Canada Inc. may apply to the Canadian Transportation Agency to decide any matter respecting the priority to be given to the trains of any of the parties to the agreement. In making its decision, the Agency shall have regard to the public interest and to the operational requirements of the parties to the agreement. Section 152.2 of the Canada Transportation Act, as enacted by section 44 of this Act, applies, with any modifications that are necessary, if the Agency, as part of its decision, fixes an amount to be paid by Via Rail Canada Inc. In the event of any inconsistency between the Agency’s decision and the provisions of the agreement, the Agency’s decision prevails to the extent of the inconsistency.
Members continued
56. (1) Despite sections 3 to 5 of this Act, the members of the Canadian Transportation Agency, including its Chairperson and Vice-Chairperson, who hold office on the coming into force of those sections continue to hold office according to the conditions of their appointments, until the expiry of their respective terms.
Temporary limitation on appointment of new members
(2) Despite section 3 of this Act, the Governor in Council may not appoint or reappoint members of the Canadian Transportation Agency under subsection 7(2) or subsection 8(2), respectively, of the Canada Transportation Act until the number of members of the Agency, other than the Chairperson and the Vice-Chairperson, is less than three.
Exception for appointment of Chairperson and Vice-Chair­person
(3) Despite subsection (2) and section 3 of this Act, the Governor in Council may appoint or reappoint members of the Canadian Transportation Agency to be designated as the Chairperson or the Vice-Chairperson of the Agency under subsection 7(3) of the Canada Transportation Act.
Adjustment to the volume-related composite price index
57. Despite subsection 151(5) of the Canada Transportation Act, the Canadian Transportation Agency shall, once only, on request of the Minister of Transport and on the date set by the Agency, adjust the volume-related composite price index to reflect costs incurred by the prescribed railway companies, as defined in section 147 of that Act, for the maintenance of hopper cars used for the movement of grain, as defined in section 147 of that Act.
Police constables appointed under section 158 of the Canada Transportation Act
58. Every police constable appointed under section 158 of the Canada Transportation Act who holds office on the day on which section 54 of this Act comes into force is deemed to have been appointed under section 44 of the Railway Safety Act, as enacted by section 54 of this Act.
CONSEQUENTIAL AMENDMENTS
R.S., c. 35 (4th Supp.)
Air Canada Public Participation Act
2000, c. 15, s. 19
59. (1) Subsections 10.1(1) and (2) of the Air Canada Public Participation Act are replaced by the following:
Deemed approval
10.1 (1) The proposed acquisition described in a letter dated December 21, 1999 from 853350 Alberta Ltd. and Air Canada to the Minister of Transport is deemed to be a transaction that has been approved by the Governor in Council under subsection 53.2(7) of the Canada Transportation Act on the day on which that subsection comes into force.
Deemed terms and conditions
(2) The undertakings provided by 853350 Alberta Ltd. and Air Canada to the Minister of Transport in the letter referred to in subsection (1) are deemed to be terms and conditions specified in an approval by the Governor in Council under subsection 53.2(7) of the Canada Transportation Act that relate to national transportation concerns, and the undertakings provided by 853350 Alberta Ltd. and Air Canada to the Commissioner of Competition that are set out in Annex A to a letter from the Commissioner dated December 21, 1999 in respect of the acquisition referred to in that subsection are deemed to be terms and conditions of an approval under subsection 53.2(7) of the Canada Transportation Act that relate to potential prevention or lessening of competition.
2000, c. 15, s. 19
(2) The portion of subsection 10.1(4) of the French version of the Act before paragraph (a) is replaced by the following:
Cessation d’effet des engagements
(4) Le gouverneur en conseil peut, par décret, déclarer que la société 853350 Alberta Ltd. et Air Canada ne sont pas assujetties aux conditions mentionnées au paragraphe (2) si les engagements cessent d’avoir effet et ne reprennent pas effet dans les circonstances prévues :
R.S., c. L-2
Canada Labour Code
1998, c. 10, s. 182
60. The definition “private constable” in subsection 3(1) of the Canada Labour Code is replaced by the following:
“private constable”« agent de police privé »
“private constable” means a person appointed as a police constable under Part IV.1 of the Railway Safety Act;
R.S., c. C-34; R.S., c. 19 (2nd Supp.), s. 19
Competition Act
2000, c. 15, s. 12
61. Subsections 29.1(3) to (5) of the Competition Act are replaced by the following:
Contents of request
(3) Requests under this section must be in writing and must
(a) specify the information referred to in any of paragraphs (2)(a) to (f) that is required; and
(b) state that the Minister of Transport requires the information for the purposes of section 53.1 or 53.2 of the Canada Transportation Act and identify the transaction being considered under that section.
Restriction
(4) The information communicated under subsection (1) may be used only for the purposes of section 53.1 or 53.2, as the case may be, of the Canada Transportation Act.
Confidentiality
(5) No person who performs or has performed duties or functions in the administration or enforcement of the Canada Transportation Act shall communicate or allow to be communicated to any other person any information communicated under subsection (1), except to persons who perform duties or functions under section 53.1 or 53.2 of that Act.
2000, c. 15, s. 14
62. Paragraph 94(c) of the Act is replaced by the following:
(c) a merger or proposed merger approved under subsection 53.2(7) of the Canada Transportation Act and in respect of which the Minister of Transport has certified to the Commissioner the names of the parties.
COORDINATING AMENDMENT
Bill C-6
63. (1) Subsections (2) and (3) apply if Bill C-6, introduced in the 1st session of the 39th Parliament and entitled An Act to amend the Aeronautics Act and to make consequential amendments to other Acts (referred to in this section as the “other Act”), receives royal assent.
(2) If section 52 of this Act comes into force before section 44 of the other Act, then section 44 of the other Act and the heading before it are repealed.
(3) If section 52 of this Act comes into force on the same day as section 44 of the other Act, then section 44 of the other Act is deemed to have come into force before section 52 of this Act.
COMING INTO FORCE
Order in council — section 27
64. Section 27 comes into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of CommonsAvailable from:Publishing and Depository ServicesPublic Works and Government Services Canada