“TIH (Toxic Inhalation Hazard) material”

« matière toxique par inhalation »

“TIH (Toxic Inhalation Hazard) material” means a gas or substance that is included in Class 2.3 of the Transportation of Dangerous Goods Regulations or that, under paragraph 2.28(c) of those Regulations, is included in Class 6.1 of those Regulations. It includes a dangerous good with a UN number that is set out in Column 1 of the Dangerous Goods List in Chapter 3.2 of the Recommendations on the Transport of Dangerous Goods – Model Regulations, Eighteenth revised edition, 2013, published by the United Nations and that is listed in Schedule III;

Marginal note:Request by all parties

• 36.2 (1) If sections 36.1 and 169.1 do not apply, the Agency may mediate or arbitrate a dispute relating to any railway matter covered under Part III — other than Division VI.2 — 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.

“crude oil”

« pétrole brut »

“crude oil” means virgin or naturally occurring unrefined petroleum, or diluted bitumen or any other unrefined hydrocarbon mixture that is similar in composition to virgin or naturally occurring unrefined petroleum. It includes crude oil with the UN numbers 1267 and 3494 that are set out in Column 1 of the Dangerous Goods List in Chapter 3.2 of the Recommendations on the Transport of Dangerous Goods – Model Regulations, Eighteenth revised edition, 2013, published by the United Nations;

Marginal note:Certificate required

• 90. (1) No person shall

  • (a) construct a railway without being the holder of a certificate of fitness that is issued under paragraph 92(1)(a); or

  • (b) operate a railway without being the holder of a certificate of fitness that is

    • (i) issued under paragraph 92(1)(a) for the portion of the operation that relates to a passenger rail service, or

    • (ii) issued under paragraph 92(1)(b) for the portion of the operation that does not relate to a passenger rail service.

Liability Insurance

Marginal note:Continuing requirement

• 93.1 (1) The holder of a certificate of fitness shall maintain at all times,

  • (a) if the certificate was issued under paragraph 92(1)(a), adequate liability insurance coverage, as determined in accordance with the regulations, for the operation or construction of the railway for which the certificate was issued; or

  • (b) if the certificate was issued under paragraph 92(1)(b), the applicable minimum liability insurance coverage, which includes any self-insurance, as set out in Schedule IV, for the operation of the railway for which the certificate was issued.

• Marginal note:Covered risks

  (2) The liability insurance referred to in paragraph (1)(b) must cover the risks described in paragraphs 92(1.1)(a) to (d) that may arise out of the operation.

• Marginal note:Self-insurance

  (3) For the purpose of paragraph (1)(b), the amount of self-insurance must not exceed the maximum amount of self-insurance that the holder of the certificate of fitness can sustain based on its financial capability.

Marginal note:Notice of insurance changes

94. The holder of a certificate of fitness shall notify the Agency in writing without delay

• (a) if the liability insurance coverage is cancelled or altered; or

• (b) if there are any changes to the construction or operation that may affect the liability insurance coverage.

Marginal note:Inquiry

94.1 The Agency may make an inquiry to determine whether a holder of a certificate of fitness complies with section 93.1.

Marginal note:Suspension or cancellation of certificate of fitness

94.2 The Agency shall suspend or cancel a certificate of fitness if it determines that the holder of the certificate has failed to comply with section 93.1.

• Marginal note:Carriage on payment of levy

  (2.1) If a railway company is to carry traffic in respect of which there is a levy under section 155.3 or 155.5, the traffic must be carried from a point referred to in paragraph (1)(a) by the railway company on the payment to the company of the levy, by the shipper, if the company is the first railway company to carry, at a rate other than an interswitching rate, the traffic after its loading.

Means to Deal with Carriers’ Liability

Marginal note:Agreement

• 137. (1) The railway company’s liability, including to a third party, in respect of the movement of a shipper’s traffic shall be dealt with between the company and the shipper only by means of a written agreement that is signed by the shipper or by an association or other body representing shippers.

• Marginal note:No agreement

  (2) If there is no agreement, the railway company’s liability to the shipper in respect of a loss of or damage to a shipper’s traffic in the company’s possession or for any delay in its movement shall be dealt with between the company and the shipper,

  • (a) on the application of the company, by the Agency; or

  • (b) if there is no application or, if there is an application but the Agency does not specify any terms or conditions with respect to the matter, in the manner set out in the regulations.

• Marginal note:Regulations

  (3) For the purposes of paragraph (2)(b), the Agency may make regulations respecting the manner in which a railway company’s liability under subsection (2) is to be dealt with between a company and a shipper.

Division VI.2Liability and Compensation in Case of Railway Accidents Involving Designated Goods

Interpretation and Application

Marginal note:Definitions

152.5 The following definitions apply in this Division.

“designated good”

« marchandise désignée »

“designated good” means

• (a) crude oil; or

• (b) any other good that is designated by the regulations.

“Fund”

« Caisse »

“Fund” means the Fund for Railway Accidents Involving Designated Goods established by subsection 153.4(1).

“railway accident”

« accident ferroviaire »

“railway accident” means any accident or incident that is associated with the operation,

• (a) on a railway, whether or not that railway is within the legislative authority of Parliament, by a railway company, of rolling stock that contains a designated good that the company carries on a shipper’s behalf; or

• (b) on a railway, by a person other than a railway company, of rolling stock that contains a designated good that the person carries on behalf of a person who sends or receives goods.

Marginal note:Application

152.6 This Division applies only to a railway company that holds a certificate of fitness that was issued under paragraph 92(1)(b) in respect of the operation of a railway for which that certificate was issued.

Liability

Marginal note:Limit of liability of railway company

• 152.7 (1) A railway company that operates a railway that is involved in a railway accident is liable for the losses, damages, costs and expenses described in subsection 153(1) up to the amount of the minimum liability insurance coverage that the company is required to maintain for the operation of the railway under paragraph 93.1(1)(b).

• Marginal note:Liability — jointly and severally, or solidarily

  (2) If more than one railway company is liable under subsection (1), the companies are jointly and severally, or solidarily, liable, each up to the amount of the minimum liability insurance coverage that applies to it.

• Marginal note:Non-application

  (3) The limit of liability referred to in subsection (1) does not apply to the railway company if it is proved that the railway accident resulted from any act or omission of that company that was committed either with intent to cause the accident or recklessly and with the knowledge that the accident would probably result.

Marginal note:No proof of fault or negligence

152.8 A railway company’s liability under subsection 152.7(1) does not depend on proof of fault or negligence.

Marginal note:Liability under another Act

152.9 If a railway company is liable, without proof of fault or negligence, under subsection 152.7(1) and under any other Act with respect to the same railway accident, the company is liable under that subsection up to the greater of the limit of liability for an amount that is referred to in that subsection and the limit up to which the company is liable under the other Act. If the other Act does not set out a limit of liability, the limit set out in that subsection does not apply.

Marginal note:Losses, damages, costs and expenses

• 153. (1) The losses, damages, costs and expenses referred to in subsection 152.7(1) are the following:

  • (a) all actual loss or damage incurred by any person, other than by a railway company that is liable under subsection 152.7(1), as a result of the railway accident or as a result of any action or measures taken in relation to the accident;

  • (b) the costs and expenses reasonably incurred by Her Majesty in right of Canada or a province or any other person in taking any action or measures in relation to the railway accident; and

  • (c) all loss of non-use value relating to a public resource that is affected by the railway accident or as a result of any action or measures taken in relation to the accident.

• Definition of “actual loss or damage”

  (2) For the purposes of paragraph (1)(a), “actual loss or damage” includes loss of income, including future income, and, with respect to any Aboriginal peoples of Canada, loss of hunting, fishing and gathering opportunities. It does not include

  • (a) any loss or damage incurred by a person who operates a railway that is not within the legislative authority of Parliament and that is involved in the railway accident, in respect of the portion of the operation that does not relate to a passenger rail service;

  • (b) any loss of or damage to goods being carried by the railway company or by the person referred to in paragraph (a); or

  • (c) any loss of income that is recoverable under subsection 42(3) of the Fisheries Act.

• Marginal note:Environmental damage

  (3) For the purposes of subsection (1), the measures include remedial measures that are taken to repair, reduce or mitigate environmental damage.

• Marginal note:Costs and expenses not recoverable under Fisheries Act

  (4) The costs and expenses that are recoverable by Her Majesty in right of Canada or a province under this Division are not recoverable under subsection 42(1) of the Fisheries Act.

Marginal note:Defences

153.1 A railway company is not liable under subsection 152.7(1) if it establishes that

• (a) the railway accident resulted from an act of war, hostilities, civil war or insurrection; or

• (b) any other defence set out in the regulations applies.

Marginal note:Claims

• 153.2 (1) All claims for the losses, damages, costs and expenses described in subsection 153(1) may be sued for and recovered in any court of competent jurisdiction in Canada.

• Marginal note:Rank of claims

  (2) Claims to recover the losses, damages, costs and expenses described in paragraphs 153(1)(a) and (b) shall rank, without preference, before those to recover a loss of non-use value described in paragraph 153(1)(c).

• Marginal note:Limitation or prescription period

  (3) Proceedings in respect of the claims referred to in subsection (1) may be instituted within a period of three years beginning on the day on which the losses, damages, costs and expenses were incurred but not after a period of six years beginning on the day on which the railway accident occurred.

• Marginal note:Proceedings — loss of non-use value

  (4) Only Her Majesty in right of Canada or a province may institute proceedings to recover a loss of non-use value described in paragraph 153(1)(c).

Marginal note:Railway company’s rights against third parties

153.3 Nothing in this Division shall be construed as limiting or restricting any right of recourse that a railway company may have against another person.

Fund for Railway Accidents Involving Designated Goods

Establishment of Fund

Marginal note:Fund established

• 153.4 (1) There is established in the accounts of Canada an account to be known as the Fund for Railway Accidents Involving Designated Goods.

• Marginal note:Credits

  (2) The following are to be credited to the Fund:

  • (a) every amount credited to the Fund under section 153.5;

  • (b) the amount of every sum credited to the Fund under section 153.6;

  • (c) every amount recovered by the Administrator under paragraph 155(2)(c); and

  • (d) every amount paid under sections 155.7 and 155.8.

• Marginal note:Charges

  (3) The following are to be charged to the Fund:

  • (a) an amount equal to every amount required to repay, in accordance with any terms and conditions specified by the Minister of Finance, an amount charged to the Consolidated Revenue Fund under section 153.6;

  • (b) every amount paid out of the Consolidated Revenue Fund under subsection 154.2(3);

  • (c) every amount paid as a result of subsection 155(1); and

  • (d) the amount of any judgment and any costs awarded as the result of an appeal made under subsection 154.9(2) or section 155.1.

Marginal note:Interest to be credited to Fund

153.5 The Minister of Finance shall cause to be credited to the Fund interest, calculated in the manner and at the rate determined by the Governor in Council, on the balance of that Fund.

Marginal note:Consolidated Revenue Fund

153.6 If the amount to the credit of the Fund is insufficient to pay any amount that is charged to the Fund under any of paragraphs 153.4(3)(b) to (d), the Minister of Finance may, subject to any terms and conditions that he or she considers appropriate, direct that a sum equal to the amount required to be paid be charged to the Consolidated Revenue Fund and credited to the Fund.

Administrator and Deputy Administrator

Marginal note:Appointment of Administrator

• 153.7 (1) The Governor in Council shall appoint an Administrator of the Fund.

• Marginal note:Tenure

  (2) The Administrator is to hold office during good behaviour for a term of not more than five years to be fixed by the Governor in Council, but may be removed for cause by the Governor in Council.

• Marginal note:Reappointment

  (3) The Administrator is eligible for reappointment on the expiry of his or her term of office.

• Marginal note:Continuation in office

  (4) If an Administrator is not appointed to take office on the expiry of the incumbent Administrator’s term, the incumbent continues to hold office until the earlier of the day fixed by the Governor in Council and the day on which a successor is appointed.

Marginal note:Appointment of Deputy Administrator

• 153.8 (1) The Governor in Council may appoint a Deputy Administrator of the Fund.

• Marginal note:Tenure

  (2) The Deputy Administrator is to hold office during good behaviour for a term of not more than five years to be fixed by the Governor in Council, but may be removed for cause by the Governor in Council.

• Marginal note:Reappointment

  (3) The Deputy Administrator is eligible for reappointment on the expiry of his or her term of office.

Marginal note:Deputy Administrator’s powers, duties and functions

• 153.9 (1) The Deputy Administrator is to exercise the powers and perform the duties and functions consistent with this Division that are assigned to him or her by the Administrator.

• Marginal note:Administrator’s absence or incapacity

  (2) If the Administrator is absent or incapacitated or the office of Administrator is vacant, the Deputy Administrator has all the powers, duties and functions of the Administrator.

Marginal note:Resignation

154. The resignation of an Administrator or Deputy Administrator becomes effective at the time that the Minister receives a written resignation from him or her or at the time specified in the resignation, whichever is later.

Marginal note:Conflict of interest

• 154.1 (1) The Administrator or Deputy Administrator shall not accept or hold any office or employment, or carry on any activity, that is inconsistent with his or her powers, duties and functions under this Division.

• Marginal note:Effect of contravention

  (2) If the Administrator or Deputy Administrator contravenes subsection (1), his or her appointment is terminated on a day fixed by the Governor in Council that is not later than 30 days after the day on which the notice of the contravention is received by the Minister, but the contravention does not affect the validity of any act performed by the Administrator or Deputy Administrator, as the case may be, under this Division between the day on which the contravention occurred and the day on which the appointment is terminated.

Marginal note:Remuneration

• 154.2 (1) The Administrator and the Deputy Administrator are to be paid, for the exercise of their powers and the performance of their duties and functions, the remuneration fixed by the Governor in Council.

• Marginal note:Travelling, living and other expenses

  (2) The Administrator and the Deputy Administrator are to be paid, in accordance with Treasury Board directives, reasonable travel, living and other expenses incurred in exercising their powers or performing their duties and functions under this Division while absent from their ordinary place of work.

• Marginal note:Payment out of Consolidated Revenue Fund

  (3) On the direction of the Minister of Finance, the remuneration and expenses referred to in subsections (1) and (2) and all other costs and expenses incurred by the Administrator and the Deputy Administrator in exercising their powers and performing their duties and functions under this Division are to be paid out of the Consolidated Revenue Fund and charged to the Fund as provided for by paragraph 153.4(3)(b).

• Marginal note:Taxation

  (4) The Federal Court’s assessment officers may, at the Minister of Justice’s request, tax any account for costs and expenses, other than expenses referred to in subsection (2), incurred by the Administrator and the Deputy Administrator in exercising their powers or performing their duties and functions under this Division as if they were acting for Her Majesty in proceedings in that Court.

Marginal note:Assistance

154.3 The Administrator may, for the purpose of exercising his or her powers or performing his or her duties and functions under this Division, obtain any professional, technical or other advice or assistance that he or she considers necessary.

Claims

Marginal note:Right to file claim

• 154.4 (1) A person who incurs a loss, damage, cost or expense described in subsection 153(1) as the result of a railway accident may file a claim with the Administrator for the amount of the loss, damage, cost or expense. The claim must be filed within a period of three years beginning on the day on which the loss, damage, cost or expense was incurred, but not after a period of six years beginning on the day on which the railway accident occurred.

• Marginal note:Burden of proof

  (2) The claimant is not required to satisfy the Administrator that the loss, damage, cost or expense resulted from the railway accident, but the Administrator shall dismiss the claim if he or she is satisfied that the loss, damage, cost or expense did not result from the railway accident.

Marginal note:Interest

• 154.5 (1) For the purposes of this Division, interest, in respect of the amount of an offer of compensation for a claim made under section 154.4 is deemed to have accrued, at the rate referred to in subsection (2), from the day on which the loss, damage, cost or expense to which the offer relates was incurred.

• Marginal note:Rate

  (2) The rate for the purposes of subsection (1) is the rate prescribed under the Income Tax Act for amounts payable by the Minister of National Revenue as refunds of overpayments of tax under that Act.

Marginal note:Investigation and assessment

• 154.6 (1) On receipt of a claim made under section 154.4, the Administrator shall investigate and assess it.

• Marginal note:Factors to be considered

  (2) In investigating and assessing a claim, the Administrator shall consider whether the claim resulted wholly or partially from

  • (a) an act done or omitted to be done by the claimant with the intent to incur a loss, damage, cost or expense; or

  • (b) the claimant’s negligence.

• Marginal note:When claimant at fault

  (3) The Administrator shall reduce or nullify any amount of a claim that he or she would have otherwise assessed in proportion to the degree to which he or she is satisfied that the claim resulted from

  • (a) an act done or omitted to be done by the claimant with the intent to incur a loss, damage, cost or expense; or

  • (b) the claimant’s negligence.

Marginal note:Offer of compensation — one railway company

• 154.7 (1) If only one railway company is liable under subsection 152.7(1) for the losses, damages, costs or expenses described in subsection 153(1) that resulted from the railway accident to which a claim made under section 154.4 relates, the Administrator shall — if he or she is satisfied that the railway company has paid, in respect of all losses, damages, costs or expenses described in subsection 153(1) that resulted from the railway accident, an amount equal to or greater than the amount of the minimum liability insurance coverage that the railway company was required to maintain under paragraph 93.1(1)(b) for the operation of the railway involved in the railway accident — make an offer of compensation to the claimant for whatever portion of the claim that the Administrator finds to be established and for which the railway company has not provided compensation.

• Marginal note:Offer of compensation — more than one railway company

  (2) If two or more railway companies are liable under subsection 152.7(1) for the losses, damages, costs or expenses described in subsection 153(1) that resulted from the railway accident to which a claim made under section 154.4 relates, the Administrator shall — if he or she is satisfied that the railway companies have paid, in respect of all losses, damages, costs or expenses described in subsection 153(1) that resulted from the railway accident, an amount equal to or greater than the sum that is equal to the total of the amount of the minimum liability insurance coverage that each of the railway companies was required to maintain under paragraph 93.1(1)(b) for the operation of its railway involved in the railway accident — make an offer of compensation to the claimant for whatever portion of the claim that the Administrator finds to be established and for which the railway companies have not provided compensation.

Marginal note:Administrator’s powers

154.8 For the purpose of investigating and assessing a claim and determining the amount, if any, that a railway company has paid as compensation in relation to the railway accident to which the claim relates, the Administrator has the powers of a commissioner under Part I of the Inquiries Act.

Marginal note:Deemed refusal

• 154.9 (1) If the Administrator makes an offer of compensation to a claimant and the claimant does not, within 60 days after receiving the offer, or any longer period that the Administrator allows, notify the Administrator whether they accept or reject it, the claimant is deemed to have refused the offer.

• Marginal note:Appeal to Federal Court — adequacy

  (2) The claimant may, before the expiry of the applicable period under subsection (1), appeal the adequacy of the offer to the Federal Court.

Marginal note:Acceptance of offer

• 155. (1) If a claimant accepts an offer of compensation from the Administrator, the Administrator shall without delay direct that payment be made to the claimant of the amount of the offer of compensation and an amount equal to the interest that is deemed to have accrued under subsection 154.5(1) in respect of that amount.

• Marginal note:Effect of acceptance

  (2) If a claimant accepts an offer of compensation,

  • (a) the claimant is precluded from pursuing any rights that they may have against any person in respect of the losses, damages, costs or expenses to which the offer of compensation relates;

  • (b) the Administrator is, to the extent of the payment to the claimant, subrogated to any rights of the claimant in respect of those losses, damages, costs or expenses; and

  • (c) the Administrator shall take reasonable measures to recover the amount of the payment from

    • (i) the railway company — or from any railway company — that is liable under subsection 152.7(1) for those losses, damages, costs or expenses, if the limit of liability referred to in subsection 152.7(1) does not apply to the railway company by reason of subsection 152.7(3) or section 152.9, or

    • (ii) any other person who is liable for those losses, damages, costs or expenses.

• Marginal note:Commencement of action

  (3) The Administrator may, for the purpose of paragraph (2)(c), commence an action in the Administrator’s or the claimant’s name.

• Marginal note:Clarification

  (4) If a railway company’s limit of liability for the railway accident to which the offer of compensation relates is, by reason of section 152.9, higher than its limit of liability under subsection 152.7(1), nothing in paragraph (2)(c) is to be construed as permitting the Administrator to recover from the railway company an amount that is greater than the difference between the two limits of liability.

Marginal note:Appeal to Federal Court — notice of dismissal

155.1 A claimant who has received a notification that the Administrator has dismissed their claim may, within 60 days after receiving the notification, appeal the dismissal to the Federal Court.

Proceedings Against Railway Company

Marginal note:Proceedings against railway company

• 155.2 (1) If proceedings are commenced against a railway company in respect of any loss, damage, cost or expense described in subsection 153(1) that resulted from a railway accident, the railway company shall as soon as feasible provide the Administrator with a copy of the document commencing the proceedings.

• Marginal note:Administrator is party

  (2) The Administrator is a party to the proceedings referred to in subsection (1) and may appear for the purpose of taking any measure that he or she considers appropriate for the proper administration of the Fund.

Levies

Marginal note:Levy — crude oil

155.3 The levy for the carriage, on a railway, of crude oil is $1.65 per tonne in the year ending on March 31, 2016, adjusted annually in accordance with section 155.4.

Marginal note:Annual adjustment of levy

• 155.4 (1) The levy for the carriage, on a railway, of crude oil is to be adjusted annually so that the levy in any following year is an amount equal to the product of

  • (a) the levy that would have been payable in that following year if no adjustment had been made under this section with respect to that following year, and

  • (b) the ratio that the Consumer Price Index for the calendar year next before that following year bears to the Consumer Price Index for the calendar year next before that calendar year.

• Marginal note:Consumer Price Index

  (2) For the purposes of this section,

  • (a) a reference to the Consumer Price Index for any 12-month period means the average of the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act, for each month in that 12-month period;

  • (b) if at any time the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act, is adjusted to reflect a new time basis, a corresponding adjustment is to be made in the Consumer Price Index for any 12-month period that is used for the purpose of calculating the levy under this section; and

  • (c) if at any time the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act, is adjusted to reflect a new content basis, that adjustment does not affect the operation of this section.

• Marginal note:Regulations

  (3) The Governor in Council may, on the recommendation of the Minister, make regulations respecting the manner in which the average of the Consumer Price Index for any 12-month period is to be determined and the manner of expressing any such average that is determined to be a fraction of a whole number.

• Marginal note:Adjusted levy to be published

  (4) The Minister shall cause the levy for the carriage of crude oil that is adjusted in accordance with this section to be published in the Canada Gazette as soon as it is available, and the levy so published is admissible in any proceedings as conclusive proof of the levy for the year in question.

Marginal note:Levy — other traffic

155.5 The levy for the carriage, on a railway, of any traffic, other than crude oil, that is specified in the regulations — or for the carriage of any traffic or any class of traffic, other than crude oil, that is specified in the regulations — is the amount specified in the regulations, or calculated in accordance with them.

Marginal note:Additional levy

• 155.6 (1) If an amount is charged to the Consolidated Revenue Fund under section 153.6, the Minister may, by order, direct that every railway company that, on a railway, carries traffic for which there is a levy under section 155.3 or 155.5 pay, in accordance with the order, an additional levy in the amount specified in the order, or calculated in accordance with it.

• Marginal note:Revocation

  (2) If such an order is made, the Minister shall revoke it as soon as feasible after an amount equal to the amount charged to the Consolidated Revenue Fund under section 153.6 has been credited to the Consolidated Revenue Fund out of amounts standing to the credit of the Fund and the Minister is satisfied that the terms and conditions in relation to the charging of that amount under that section have been met.

Marginal note:Obligation to pay

• 155.7 (1) Every railway company that is the first to carry, at a rate other than an interswitching rate, traffic in respect of which there is a levy under section 155.3 or 155.5 after the traffic has been loaded — and every railway company that is directed by an order made under section 155.6 to pay a levy — shall pay to the Receiver General an amount equal to the amount of the levy, applicable to the traffic carried by it, or that is required to be paid under the order, as the case may be,

  • (a) within 30 days after the expiry of the calendar quarter in which the levy became due; or

  • (b) if a regulation made under paragraph 155.97(d) is in force, before the expiry of the period specified in or determined under that regulation.

• Marginal note:When levy is due — sections 155.3 and 155.5

  (2) A levy under section 155.3 or 155.5 becomes due on the first day on which the traffic is carried, at a rate other than an interswitching rate, by the railway company that is the first to carry the traffic after it has been loaded.

• Marginal note:When levy is due — section 155.6

  (3) A levy imposed by an order made under section 155.6 becomes due on the day provided for in the order.

• Meaning of “calendar quarter”

  (4) In this section, “calendar quarter” means a three-month period that begins on the first day of January, April, July or October.

Marginal note:Interest on unpaid amounts

155.8 If any portion of a levy is not paid by a railway company as required by subsection 155.7(1), the railway company shall pay to the Receiver General interest on that portion — calculated in the manner and at the rate that the Governor in Council may, by order, determine — from the time when the payment was required to be made.

Marginal note:Debt due to Her Majesty

155.81 All amounts payable under subsection 155.7(1) and section 155.8 are debts due to Her Majesty in right of Canada and are recoverable in any court of competent jurisdiction from the railway company that is required to pay them.

Marginal note:Power to require information

155.82 The Minister may direct that a railway company provide, in the specified form and within the specified period, information or documents that he or she considers necessary for the purposes of ensuring compliance with this Division.

Marginal note:Discontinuation and reimposition

• 155.83 (1) The Minister may, by order, discontinue the application of subsections 113(2.1) and 155.7(1) in respect of the carriage of any traffic — indefinitely or until a time specified in the order — or, by order, reimpose the application of those subsections in respect of the carriage of that traffic if it has been discontinued indefinitely.

• Marginal note:Annual adjustment of levy unaffected

  (2) The making of an order under subsection (1) does not affect the operation of section 155.4 in respect of any levy.

Marginal note:Records and books of account

• 155.84 (1) Every railway company that is required to pay an amount under subsection 155.7(1) shall keep at their place of business in Canada, or at any other place in Canada that may be designated by the Minister, records and books of account that set out

  • (a) the amount that is payable by the railway company under that subsection;

  • (b) the type and quantity of the traffic in respect of which that amount is payable;

  • (c) if the traffic to which that amount relates is traffic in respect of which there is a levy under section 155.3 or 155.5, the day on which the traffic was first carried, at a rate other than an interswitching rate, by the railway company after it was loaded and the place from which it was first carried by it after the loading; and

  • (d) if the traffic to which that amount relates is traffic in respect of which there is a levy imposed by an order made under section 155.6, the day on which the traffic was carried by the railway company, the place from which it was carried and the place to which it was carried.

• Marginal note:Disposal of records

  (2) Every railway company that is required by subsection (1) to keep records and books of account shall, unless otherwise authorized by the Minister, retain those records and books of account, and every account or voucher that is necessary to verify the information contained in them, until the expiry of six years after the end of the year to which the records or books of account relate.

• Marginal note:Examination of records

  (3) Every railway company that is required by subsection (1) to keep records and books of account shall, at all reasonable times, make the records and books of account, and every account or voucher that is necessary to verify the information contained in them, available to any person designated under subsection 155.85(1) and give that person every facility that is necessary to examine them.

Marginal note:Designation

• 155.85 (1) The Minister may designate persons or classes of persons for the purposes of the administration and enforcement of subsection 155.7(1) or section 155.84.

• Marginal note:Certificate of designation

  (2) Every person who is designated under subsection (1) is to be provided with a certificate of their designation that must be produced, on request, to the owner, occupier or person in charge of any place referred to in subsection 155.86(1) when the designated person enters the place.

Marginal note:Inspection

• 155.86 (1) A person who is designated under subsection 155.85(1) may, for a purpose related to verifying compliance with subsection 155.7(1) or section 155.84, enter any place in which they have reasonable grounds to believe there are any records, books of account, accounts, vouchers or other documents relating to amounts payable under subsection 155.7(1).

• Marginal note:Powers on entry

  (2) The designated person may, for the purpose referred to in subsection (1),

  • (a) examine anything in the place, including any document;

  • (b) use any means of communication in the place, or cause it to be used;

  • (c) use any computer system in the place, or cause it to be used, to examine data contained in or available to it, or reproduce the data, or cause it to be reproduced, in the form of a printout or other intelligible output and remove any printout or output for examination or copying;

  • (d) prepare a document, or cause one to be prepared, based on the data;

  • (e) use any copying equipment in the place, or cause it to be used;

  • (f) take photographs or make recordings or sketches of anything in the place;

  • (g) prohibit or limit access to all or part of the place or to anything in the place; and

  • (h) remove anything from the place for the purpose of examination.

• Marginal note:Persons accompanying designated person

  (3) The designated person may be accompanied by any person who they believe is necessary to help them exercise their powers or perform their duties or functions under this section.

• Marginal note:Assistance

  (4) The owner or person in charge of the place and every person in the place shall give all assistance that is reasonably required to enable the designated person to exercise their powers or perform their duties or functions under this section and shall provide any documents or information, and access to any data, that is reasonably required.

Marginal note:Warrant to enter dwelling-house

• 155.87 (1) If the place referred to in subsection 155.86(1) is a dwelling-house, the designated person may enter it without the occupant’s consent only under the authority of a warrant issued under subsection (2).

• Marginal note:Authority to issue warrant

  (2) On ex parte application, a justice of the peace may issue a warrant authorizing the designated person to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that

  • (a) the dwelling-house is a place referred to in subsection 155.86(1);

  • (b) entry to the dwelling-house is necessary for the purpose of that subsection; and

  • (c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused by, or that consent to entry cannot be obtained from, the occupant.

Marginal note:Report to Minister

155.88 On the conclusion of an inspection, the designated person shall provide a written report of their findings to the Minister.

Marginal note:Return of documents

• 155.89 (1) A document that is removed under paragraph 155.86(2)(h) must be returned to the person from whose custody it is taken within 21 days after it is taken or within any longer period that is directed by a judge of a superior court or agreed to by a person who is entitled to its return.

• Marginal note:Notice of application for extension of time

  (2) An application to a judge for a direction under subsection (1) may only be made on notice to the person from whose custody the document is removed.

Marginal note:Copies of documents

155.9 A document purporting to be certified by the Minister to be a copy of a document made under subsection 155.86(2) is admissible in evidence in any prosecution for an offence in respect of a contravention of a provision of this Division or of a regulation made under this Division — or in respect of a contravention of an order made under this Division — and, in the absence of evidence to the contrary, is proof of its contents.

Marginal note:False information, etc.

• 155.91 (1) No person shall knowingly make any false or misleading statement, or knowingly provide false or misleading information, either orally or in writing, to a person who is exercising powers or performing duties or functions under section 155.86.

• Marginal note:Obstruction

  (2) No person shall knowingly obstruct or hinder a person who is exercising powers or performing duties or functions under section 155.86.

Administration of Fund

Marginal note:Books of account and systems

• 155.92 (1) The Administrator shall cause

  • (a) records and books of account to be kept in relation to the Fund; and

  • (b) control and information systems and management practices, in respect of financial and management matters, to be maintained in relation to the Fund.

• Marginal note:Administrator’s responsibility

  (2) The Administrator shall keep or maintain, as the case may be, the records, books, systems and practices in a manner that provides reasonable assurance that

  • (a) the Administrator’s and Deputy Administrator’s powers, duties and functions under this Division are exercised and performed effectively and in accordance with this Division;

  • (b) the assets used by them are safeguarded and controlled; and

  • (c) the financial, human and physical resources used by them are managed economically and efficiently.

Marginal note:Annual report

• 155.93 (1) The Administrator shall as soon as feasible, but in any case within three months after the end of each fiscal year, submit an annual report, in any form that the Minister may direct, on the Administrator’s activities in that year to the Minister, who shall cause a copy of the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after he or she receives it.

• Marginal note:Form and content

  (2) The annual report must include

  • (a) a statement of the amounts charged and credited to the Fund during the fiscal year;

  • (b) a statement of the costs and expenses incurred during the fiscal year by the Administrator and the Deputy Administrator in exercising their powers and performing their duties and functions under this Division;

  • (c) a statement of the fees for services rendered by the Administrator and the Deputy Administrator during the fiscal year;

  • (d) the auditor’s report with respect to the statements referred to in paragraphs (a) to (c); and

  • (e) the costs of preparing the auditor’s report.

• Definition of “fiscal year”

  (3) In this section, “fiscal year” means the period that begins on April 1 in one calendar year and that ends on March 31 in the next calendar year.

Marginal note:Special examination

• 155.94 (1) The Administrator shall cause a special examination to be carried out in respect of the systems and practices referred to in paragraph 155.92(1)(b) to determine if they were, in the period under examination, maintained in a manner that provided reasonable assurance that the assets referred to in paragraph 155.92(2)(b) were safeguarded and controlled and that the resources referred to in paragraph 155.92(2)(c) were managed economically and efficiently.

• Marginal note:Time for examination

  (2) A special examination must be carried out at least once every five years by the Administrator and at any other time that the Governor in Council or Minister may require.

• Marginal note:Examiner

  (3) The Administrator shall appoint a person to act as examiner for the purpose of conducting a special examination. However, if a special examination is required by the Governor in Council or the Minister, the Governor in Council or the Minister, as the case may be, shall make the appointment.

• Marginal note:Conflict of interest

  (4) The examiner shall not accept or hold any office or employment, or carry on any activity, that is inconsistent with their duties and functions under this section and section 155.95.

• Marginal note:Plan

  (5) Before an examiner begins a special examination, they shall survey the systems and practices to be examined and submit to the Minister and the Administrator a plan for the examination, including a statement of the criteria to be applied in the examination.

• Marginal note:Resolution of disagreements

  (6) Any disagreement between the examiner and the Administrator with respect to the plan is to be resolved by the Minister.

Marginal note:Report

• 155.95 (1) On the conclusion of a special examination, the examiner shall provide a written report of their findings to the Minister and the Administrator.

• Marginal note:Contents

  (2) The examiner’s report must include

  • (a) a statement as to whether, in their opinion, with respect to the criteria established under subsection 155.94(5), there is reasonable assurance that there are no significant deficiencies in the systems and practices examined; and

  • (b) a statement of the extent to which they relied on internal audits.

Marginal note:Right to information

• 155.96 (1) If the examiner considers it necessary to enable them to prepare a report as required by this Division, they may direct that the present or any former Administrator or Deputy Administrator — or any present or former employee or agent or mandatary of the present or any former Administrator or Deputy Administrator — provide, to the extent that that person is reasonably able to do so, the examiner with

  • (a) information and explanations; and

  • (b) access to any records, books of account, accounts, vouchers and other documents related to the Fund.

• Marginal note:Administrator’s responsibilities

  (2) At the examiner’s request, the Administrator shall

  • (a) provide any information and explanations that the examiner considers necessary to enable the examiner to prepare any report that is required by this Division and that the Administrator is reasonably able to provide; and

  • (b) obtain from any former Administrator or the present or any former Deputy Administrator — or from any present or any former employee or agent or mandatary of the present or former Administrator or Deputy Administrator — any information and explanations that the examiner considers necessary to enable the examiner to prepare any report that is required by this Division and that any of those persons are reasonably able to provide, and then provide the examiner with the information and explanations so obtained.

Regulations

Marginal note:Governor in Council

155.97 The Governor in Council may make regulations

• (a) designating goods or classes of goods for the purpose of the definition “designated good” in section 152.5;

• (b) setting out defences for the purpose of section 153.1;

• (c) respecting traffic or any class of traffic for the purposes of section 155.5 and a levy for the carriage of that traffic or class of traffic, or a manner of calculating the levy;

• (d) respecting a period for the purpose of subsection 155.7(1);

• (e) respecting the keeping, by railway companies, of information in relation to their carriage of any traffic in respect of which there is a levy under section 155.3 or 155.5, or a levy imposed by an order made under section 155.6, and the filing of that information with the Minister;

• (f) respecting a rate of interest for the purpose of section 155.8, or a manner of calculating the rate; and

• (g) generally for carrying out the purposes and provisions of this Division.

General

Marginal note:Sections 26 and 37

155.98 For the purposes of sections 26 and 37, this Division is deemed not to be a part of an Act of Parliament that is referred to in those sections.