Short Title

Marginal note:Short title

1 This Act may be cited as the Canada Transportation Act.

Her Majesty

Marginal note:Binding on Her Majesty

2 This Act is binding on Her Majesty in right of Canada or a province.

Application

Marginal note:Application generally

3 This Act applies in respect of transportation matters under the legislative authority of Parliament.

Marginal note:Conflicts

• 4 (1) Subject to subsection (2), where there is a conflict between any order or regulation made under this Act in respect of a particular mode of transportation and any rule, order or regulation made under any other Act of Parliament in respect of that particular mode of transportation, the order or regulation made under this Act prevails.

• Marginal note: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.

• Marginal note: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.

National Transportation Policy

Marginal note: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 all persons;

• (d.1) the transportation system is accessible without barriers to persons with disabilities; and

• (e) governments and the private sector work together for an integrated transportation system.

Interpretation

Marginal note:Definitions

6 In this Act,

Agency

Agency means the Canadian Transportation Agency continued by subsection 7(1); (Office)

carrier

carrier means a person who is engaged in the transport of goods or passengers by any means of transport under the legislative authority of Parliament; (transporteur)

Chairperson

Chairperson means the Chairperson of the Agency; (président)

class 1 rail carrier

class 1 rail carrier means

• (a) the Canadian National Railway Company,

• (b) the Canadian Pacific Railway Company,

• (c) BNSF Railway Company,

• (d) CSX Transportation, Inc.,

• (e) Norfolk Southern Railway Company,

• (f) Union Pacific Railroad Company, and

• (g) any railway company, as defined in section 87, that is specified in the regulations; (transporteur ferroviaire de catégorie 1)

goods

goods includes rolling stock and mail; (marchandises)

member

member means a member of the Agency appointed under subsection 7(2) and includes a temporary member; (membre)

Minister

Minister means the Minister of Transport; (ministre)

radioactive material

radioactive material has the same meaning as in subsection 1(1) of the Packaging and Transport of Nuclear Substances Regulations, 2015. It includes a dangerous good with any of UN numbers 2908 to 2913, 2915 to 2917, 2919, 2977, 2978, 3321 to 3333 and 3507 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; (matière radioactive)

rolling stock

rolling stock includes a locomotive, engine, motor car, tender, snow-plough, flanger and any car or railway equipment that is designed for movement on its wheels on the rails of a railway; (matériel roulant)

shipper

shipper means a person who sends or receives goods by means of a carrier or intends to do so; (expéditeur)

sitting day of Parliament

sitting day of Parliament means a day on which either House of Parliament sits; (jour de séance)

superior court

superior court means

• (a) in Ontario, the Superior Court of Justice,

• (b) in Quebec, the Superior Court,

• (c) in New Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Queen’s Bench,

• (d) in Nova Scotia, British Columbia, Prince Edward Island, Yukon and the Northwest Territories, the Supreme Court,

• (e) in Newfoundland and Labrador, the Trial Division of the Supreme Court, and

• (f) in Nunavut, the Nunavut Court of Justice; (cour supérieure)

temporary member

temporary member means a temporary member of the Agency appointed under subsection 9(1); (membre temporaire)

TIH (Toxic Inhalation Hazard) material

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; (matière toxique par inhalation)

Vice-Chairperson

Vice-Chairperson means the Vice-Chairperson of the Agency. (vice-président)

Power of the Governor in Council

Marginal note:Governor in Council

6.1 The Governor in Council may make regulations specifying railway companies for the purpose of paragraph (g) of the definition class 1 rail carrier.

Marginal note:Designated person

6.11 The Governor in Council may, by regulations, designate a person for the purposes of subsections 50(1.001) and (3) and 51(1), (3) and (4).

Electronic Administration and Enforcement

Marginal note:Electronic means

• 6.2 (1) If the Minister administers or enforces an Act of Parliament, the Minister may do so using electronic means.

• Marginal note:Designated persons

  (2) For greater certainty, any person or class of persons who are designated by the Minister under an Act of Parliament for the purposes of the administration and enforcement of that Act may, in the exercise of their powers or the performance of their duties and functions, use the electronic means that are made available or specified by the Minister.

• Marginal note:Delegate

  (3) For greater certainty, a person who has been authorized by the Minister to do anything that may be done by the Minister under an Act of Parliament, may do so using the electronic means that are made available or specified by the Minister.

Marginal note:Provision of information

6.3 For the purposes of sections 6.4 and 6.5, providing information includes

• (a) making an application, request or decision;

• (b) giving notice; and

• (c) submitting a document.

Marginal note:Conditions for electronic version

6.4 For the purposes of an Act of Parliament that the Minister administers or enforces, a requirement under that Act to provide a signature or to provide information in a paper-based format is met if

• (a) an electronic version of the signature or information is provided by electronic means that are made available or specified by the Minister; and

• (b) any other condition that is provided for in regulations made under paragraph 6.5(a) is met.

Marginal note:Regulations

6.5 The Governor in Council may make regulations

• (a) respecting the application of sections 6.2 and 6.4, including the technology or format to be used, or the standards, specifications or processes to be followed, including for the making or verifying of an electronic signature and the manner in which it is to be used;

• (b) setting out the circumstances in which a person who must provide a signature or information under an Act that the Minister administers or enforces is required to do so using electronic means and specifying those means;

• (c) authorizing the Minister to permit or direct the use of electronic means, other than those referred to in paragraph (b), or non-electronic means and setting out the circumstances in which the Minister may do so; and

• (d) respecting the date and time when, and the place where, the electronic version of information is deemed to be sent or received.

Exemptions

Marginal note:Application

• 6.6 (1) A person may, in the form and manner specified by the Minister, apply to the Minister for an order that exempts any person or thing, or class of persons or things, from the application of any provision of an Act of Parliament that the Minister administers or enforces or any provision of an instrument made under that Act.

• Marginal note:Information

  (2) The Minister may, on receiving the application, require the provision of any information that is necessary for the Minister to process and assess the application.

• Marginal note:Debts to Her Majesty

  (3) The Minister may refuse to process or assess the application if the applicant has not paid an amount that, under an Act of Parliament that the Minister administers or enforces, constitutes a debt due to Her Majesty in right of Canada.

Marginal note:Order

• 6.7 (1) The Minister may, by order, exempt, for a period of not more than five years and subject to any conditions that the Minister considers appropriate, any person or thing, or class of persons or things, from the application of any provision of an Act of Parliament that the Minister administers or enforces or any provision of an instrument made under that Act, if the Minister is of the opinion that the exemption, having regard to the purposes of that Act, is in the public interest and that the exemption promotes innovation in transportation through research, development or testing.

• Marginal note:Extension

  (2) The Minister may, by order, extend the period of an exemption once, for a further period of not more than five years, subject to any conditions that the Minister considers appropriate.

• Marginal note:Statutory Instruments Act

  (3) The Statutory Instruments Act does not apply to an order made under this section that applies to a single person or thing.

• Marginal note:Accessibility

  (4) The Minister shall ensure that an order referred to in subsection (3) is accessible to the public unless the Minister is of the opinion that it would be inappropriate for reasons that include safety or security considerations or the protection of confidential or personal information.

• Marginal note:Exemptions under other Act

  (5) For greater certainty, the making of an order under subsection (1) does not preclude or limit the exercise of a power to exempt under an Act of Parliament that is administered or enforced by the Minister and vice versa.

Marginal note:Cost recovery

6.8 The Minister may recover any costs associated with the processing and assessing of an application under section 6.6 and may refuse to make the order requested until those costs are recovered from the applicant.

PART IAdministration

Canadian Transportation Agency

Continuation and Organization

Marginal note:Agency continued

• 7 (1) The agency known as the National Transportation Agency is continued as the Canadian Transportation Agency.

• Marginal note: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.

• Marginal note:Chairperson and Vice-Chairperson

  (3) The Governor in Council shall designate one of the members appointed under subsection (2) to be the Chairperson of the Agency and one of the other members appointed under that subsection to be the Vice-Chairperson of the Agency.

Marginal note:Term of members

• 8 (1) Each member appointed under subsection 7(2) shall hold office during good behaviour for a term of not more than five years and may be removed for cause by the Governor in Council.

• Marginal note:Reappointment

  (2) A member appointed under subsection 7(2) is eligible to be reappointed on the expiration of a first or subsequent term of office.

• Marginal note: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).

Marginal note:Temporary members

• 9 (1) The Minister may appoint temporary members of the Agency from the roster of individuals established by the Governor in Council under subsection (2).

• Marginal note:Roster

  (2) The Governor in Council may appoint any individual to a roster of candidates for the purpose of subsection (1).

• Marginal note:Maximum number

  (3) Not more than three temporary members shall hold office at any one time.

• Marginal note:Term of temporary members

  (4) A temporary member shall hold office during good behaviour for a term of not more than one year and may be removed for cause by the Governor in Council.

• Marginal note:No reappointment

  (5) A person who has served two consecutive terms as a temporary member is not, during the twelve months following the completion of the person’s second term, eligible to be reappointed to the Agency as a temporary member.

Marginal note:Members — conflicts of interest

• 10 (1) A member appointed under subsection 7(2) shall not, directly or indirectly, as owner, shareholder, director, officer, partner or otherwise,

  • (a) be engaged in a transportation undertaking or business; or

  • (b) have an interest in a transportation undertaking or business or an interest in the manufacture or distribution of transportation plant or equipment, unless the distribution is merely incidental to the general merchandising of goods.

• Marginal note:Temporary members may not hold other office

  (2) During the term of office of a temporary member, the member shall not accept or hold any office or employment that is inconsistent with the member’s duties under this Act.

• Marginal note:Disposal of conflict of interest

  (3) If an interest referred to in subsection (1) vests in a member appointed under subsection 7(2) for the benefit of the member by will or succession, the member shall, within three months after the vesting, absolutely dispose of the interest.

Remuneration

Marginal note:Remuneration

• 11 (1) A member shall be paid such remuneration and allowances as may be fixed by the Governor in Council.

• Marginal note:Expenses

  (2) Each member is entitled to be paid reasonable travel and living expenses incurred by the member in carrying out duties under this Act or any other Act of Parliament while absent from the member’s ordinary place of work.

Marginal note:Members — retirement pensions

• 12 (1) A member appointed under subsection 7(2) is deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.

• Marginal note:Temporary members not included

  (2) A temporary member is deemed not to be employed in the public service for the purposes of the Public Service Superannuation Act unless the Governor in Council, by order, deems the member to be so employed for those purposes.

• Marginal note:Accident compensation

  (3) For the purposes of the Government Employees Compensation Act and any regulation made pursuant to section 9 of the Aeronautics Act, a member is deemed to be an employee in the federal public administration.

Chairperson

Marginal note:Duties of Chairperson

13 The Chairperson is the chief executive officer of the Agency and has the supervision over and direction of the work of the members and its staff, including the apportionment of work among the members and the assignment of members to deal with any matter before the Agency.

Marginal note:Absence of Chairperson

14 In the event of the absence or incapacity of the Chairperson or if the office of Chairperson is vacant, the Vice-Chairperson has all the powers and shall perform all the duties and functions of the Chairperson.

Marginal note:Absence of both Chairperson and Vice-Chairperson

15 The Chairperson may authorize one or more of the members to act as Chairperson for the time being if both the Chairperson and Vice-Chairperson are absent or unable to act.

Quorum

Marginal note:Quorum

• 16 (1) Subject to the Agency’s rules, two members constitute a quorum.

• Marginal note:Quorum lost because of incapacity of member

  (2) Where a member who is conducting a hearing in respect of a matter becomes incapacitated or dies during the hearing or after the conclusion of the hearing but before rendering a decision and quorum is lost as a result, the Chairperson may, with the consent of all the parties to the hearing,

  • (a) if the incapacity or death occurs during the hearing, authorize another member to continue the hearing and render a decision, or

  • (b) if the incapacity or death occurs after the conclusion of the hearing, authorize another member to examine the evidence presented at the hearing and render a decision,

  and in either case, the quorum in respect of the matter is deemed never to have been lost.

• Marginal note:Quorum not lost because of incapacity of member

  (3) Where a member who is conducting a hearing in respect of a matter becomes incapacitated or dies during the hearing and quorum is not lost as a result, another member may be assigned by the Chairperson to participate in the hearing and in the rendering of a decision.

Rules

Marginal note:Rules

17 The Agency may make rules respecting

• (a) the sittings of the Agency and the carrying on of its work;

• (b) the manner of and procedures for dealing with matters and business before the Agency, including the circumstances in which hearings may be held in private; and

• (c) the number of members that are required to hear any matter or perform any of the functions of the Agency under this Act or any other Act of Parliament.

Head Office

Marginal note:Head office

• 18 (1) The head office of the Agency shall be in the National Capital Region described in the schedule to the National Capital Act.

• Marginal note:Residence of members

  (2) The members appointed under subsection 7(2) 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.

Staff

Marginal note:Secretary, officers and employees

19 The Secretary of the Agency and the other officers and employees that are necessary for the proper conduct of the business of the Agency shall be appointed in accordance with the Public Service Employment Act.

Marginal note:Technical experts

20 The Agency may appoint and, subject to any applicable Treasury Board directive, fix the remuneration of experts or persons who have technical or special knowledge to assist the Agency in an advisory capacity in respect of any matter before the Agency.

Records

Marginal note:Duties of Secretary

• 21 (1) The Secretary of the Agency shall

  • (a) maintain a record in which shall be entered a true copy of every rule, order, decision and regulation of the Agency and any other documents that the Agency requires to be entered in it; and

  • (b) keep at the Agency’s office a copy of all rules, orders, decisions and regulations of the Agency and the records of proceedings of the Agency.

• Marginal note:Entries in record

  (2) The entry of a document in the record referred to in paragraph (1)(a) shall constitute the original record of the document.

Marginal note:Copies of documents obtainable

22 On the application of any person, and on payment of a fee fixed by the Agency, the Secretary of the Agency or, in the absence of the Secretary, the person assigned by the Chairperson to act in the absence shall issue under the seal of the Agency to the applicant a certified copy of any rule, order, regulation or any other document that has been issued by the Agency.

Marginal note:Judicial notice of documents

• 23 (1) Judicial notice shall be taken of a document issued by the Agency under its seal without proof of the signature or official character of the person appearing to have signed it.

• Marginal note:Evidence of deposited documents

  (2) A document purporting to be certified by the Secretary of the Agency as being a true copy of a document deposited or filed with or approved by the Agency, or any portion of such a document, is evidence that the document is so deposited, filed or approved and, if stated in the certificate, of the time when the document was deposited, filed or approved.

Powers of Agency

Marginal note:Policy governs Agency

24 The powers, duties and functions of the Agency respecting any matter that comes within its jurisdiction under an Act of Parliament shall be exercised and performed in conformity with any policy direction issued to the Agency under section 43.

Marginal note:Agency powers in general

25 The Agency has, with respect to all matters necessary or proper for the exercise of its jurisdiction, the attendance and examination of witnesses, the production and inspection of documents, the enforcement of its orders or regulations and the entry on and inspection of property, all the powers, rights and privileges that are vested in a superior court.

Marginal note:Power to award costs

• 25.1 (1) Subject to subsections (2) to (4), the Agency has all the powers that the Federal Court has to award costs in any proceeding before it.

• Marginal note:Costs may be fixed or taxed

  (2) Costs may be fixed in any case at a sum certain or may be taxed.

• Marginal note:Payment

  (3) The Agency may direct by whom and to whom costs are to be paid and by whom they are to be taxed and allowed.

• Marginal note:Scale

  (4) The Agency may make rules specifying a scale under which costs are to be taxed.

Marginal note:Compelling observance of obligations

26 The Agency may require a person to do or refrain from doing any thing that the person is or may be required to do or is prohibited from doing under any Act of Parliament that is administered in whole or in part by the Agency.

Marginal note:Relief

• 27 (1) The Agency may grant the whole or part of an application, or may make any order or grant any further or other relief that the Agency considers appropriate.

• (2) and (3) [Repealed, 2008, c. 5, s. 1]

• Marginal note:Amendments

  (4) The Agency may, on terms or otherwise, make or allow any amendments in any proceedings before it.

• (5) [Repealed, 2008, c. 5, s. 1]

Marginal note:Orders

• 28 (1) The Agency may in any order direct that the order or a portion or provision of it shall come into force

  • (a) at a future time,

  • (b) on the happening of any contingency, event or condition specified in the order, or

  • (c) on the performance, to the satisfaction of the Agency or a person named by it, of any terms that the Agency may impose on an interested party,

  and the Agency may direct that the whole or any portion of the order shall have force for a limited time or until the happening of a specified event.

• Marginal note:Interim orders

  (2) The Agency may, instead of making an order final in the first instance, make an interim order and reserve further directions either for an adjourned hearing of the matter or for further application.

Marginal note:Time for making decisions

• 29 (1) The Agency shall make its decision in any proceedings before it as expeditiously as possible, but no later than one hundred and twenty days after the originating documents are received, unless the parties agree to an extension or this Act or a regulation made under subsection (2) provides otherwise.

• Marginal note:Period for specified classes

  (2) The Governor in Council may, by regulation, prescribe periods of less than one hundred and twenty days within which the Agency shall make its decision in respect of such classes of proceedings as are specified in the regulation.

Marginal note:Pending proceedings

30 The fact that a suit, prosecution or proceeding involving a question of fact is pending in any court does not deprive the Agency of jurisdiction to hear and determine the same question of fact.

Marginal note:Fact finding is conclusive

31 The finding or determination of the Agency on a question of fact within its jurisdiction is binding and conclusive.

Marginal note:Review of decisions and orders

32 The Agency may review, rescind or vary any decision or order made by it or may re-hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing.

Marginal note: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.

• Marginal note:Procedure

  (2) To make a decision or order an order of a court, either the usual practice and procedure of the court in such matters may be followed or the Secretary of the Agency may file with the registrar of the court a certified copy of the decision or order, signed by the Chairperson and sealed with the Agency’s seal, at which time the decision or order becomes an order of the court.

• Marginal note:Effect of variation or rescission

  (3) Where a decision or order that has been made an order of a court is rescinded or varied by a subsequent decision or order of the Agency, the order of the court is deemed to have been cancelled and the subsequent decision or order may be made an order of the court.

• Marginal note:Option to enforce

  (4) The Agency may, before or after one of its decisions or orders is made an order of a court, enforce the decision or order by its own action.

Marginal note:Fees and charges

• 34 (1) The Agency may, after consulting with the Minister, make rules respecting the fees and charges to be paid in relation to the administration or enforcement of any provision of this Act or the regulations whose administration or enforcement is the responsibility of the Agency.

• Marginal note:Consultation

  (2) Before making a rule under subsection (1), the Agency shall consult with any persons or organizations that the Agency considers to be interested in the matter.

• Marginal note:Debt due to His Majesty

  (3) Fees or charges required to be paid under this section constitute a debt to His Majesty in right of Canada and may be recovered as such in a court of competent jurisdiction.

Marginal note:Fees for witnesses

35 Every person summoned to attend before the Agency under this Part or before a person making an inquiry under this Part shall receive the fees and allowances for so doing that the Agency may, by regulation, prescribe.

Marginal note:Approval of regulations required

• 36 (1) Every regulation made by the Agency under this Act must be made with the approval of the Governor in Council.

• Marginal note:Advance notice of regulations

  (2) The Agency shall give the Minister notice of every regulation proposed to be made by the Agency under this Act.

Mediation

Marginal note: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.

• Marginal note:Appointment of mediator

  (2) When a dispute is referred for mediation, the Chairperson shall appoint one or two persons to mediate the dispute.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Information and Informal Dispute Resolution Services

Marginal note:Information and guidance

• 36.11 (1) The Agency shall take measures to inform the public in respect of the provisions of Parts III and IV, including

  • (a) publishing general information on its Internet site; and

  • (b) providing information and guidance to any interested person on the manner in which remedies under those provisions may be accessed, having regard to their particular circumstances.

• Marginal note:Informal resolution

  (2) A member of the Agency or its staff may attempt to resolve in an informal manner with a railway company any issue raised by an interested person to whom it has provided information and guidance. In doing so, the member or staff shall not reveal the identity of the interested person without their consent.

• Marginal note:Person not to act in proceedings

  (3) A person who exercises the powers or performs the duties or functions under paragraph (1)(b) or subsection (2) shall not act in any proceedings before the Agency that are related to an issue in respect of which the person provided information, guidance or informal dispute resolution services.

Mediation or Arbitration

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.

• Marginal note:Establishment of roster

  (1.1) The Agency may establish a roster of persons, which may include members and staff of the Agency, to act as mediators or arbitrators.

• Marginal note: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.

• Marginal note: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.

Inquiries

Marginal note:Inquiry into complaint

37 The Agency may inquire into, hear and determine a complaint concerning any act, matter or thing prohibited, sanctioned or required to be done under any Act of Parliament that is administered in whole or in part by the Agency.

Marginal note:Appointment of person to conduct inquiry

• 38 (1) The Agency may appoint a member, or an employee of the Agency, to make any inquiry that the Agency is authorized to conduct and report to the Agency.

• Marginal note:Dealing with report

  (2) On receipt of the report under subsection (1), the Agency may adopt the report as a decision or order of the Agency or otherwise deal with it as it considers advisable.

Marginal note:Powers on inquiry

39 A person conducting an inquiry may, for the purposes of the inquiry,

• (a) enter and inspect any place, other than a dwelling-house, or any structure, work, rolling stock or ship that is the property or under the control of any person the entry or inspection of which appears to the inquirer to be necessary; and

• (b) exercise the same powers as are vested in a superior court to summon witnesses, enforce their attendance and compel them to give evidence and produce any materials, books, papers, plans, specifications, drawings and other documents that the inquirer thinks necessary.

Review and Appeal

Marginal note:Governor in Council may vary or rescind orders, etc.

40 The Governor in Council may, at any time, in the discretion of the Governor in Council, either on petition of a party or an interested person or of the Governor in Council’s own motion, vary or rescind any decision, order, rule or regulation of the Agency, whether the decision or order is made inter partes or otherwise, and whether the rule or regulation is general or limited in its scope and application, and any order that the Governor in Council may make to do so is binding on the Agency and on all parties.

Marginal note:Appeal from Agency

• 41 (1) An appeal lies from the Agency to the Federal Court of Appeal on a question of law or a question of jurisdiction on leave to appeal being obtained from that Court on application made within one month after the date of the decision, order, rule or regulation being appealed from, or within any further time that a judge of that Court under special circumstances allows, and on notice to the parties and the Agency, and on hearing those of them that appear and desire to be heard.

• Marginal note:Time for making appeal

  (2) No appeal, after leave to appeal has been obtained under subsection (1), lies unless it is entered in the Federal Court of Appeal within sixty days after the order granting leave to appeal is made.

• Marginal note:Powers of Court

  (3) An appeal shall be heard as quickly as is practicable and, on the hearing of the appeal, the Court may draw any inferences that are not inconsistent with the facts expressly found by the Agency and that are necessary for determining the question of law or jurisdiction, as the case may be.

• Marginal note:Agency may be heard

  (4) The Agency is entitled to be heard by counsel or otherwise on the argument of an appeal.

Report of Agency

Marginal note:Agency’s report

• 42 (1) Each year the Agency shall, before the end of July, make a report on its activities for the preceding year and submit it, through the Minister, to the Governor in Council describing briefly, in respect of that year,

  • (a) applications to the Agency and the findings on them; and

  • (b) the findings of the Agency in regard to any matter or thing respecting which the Agency has acted on the request of the Minister.

• Marginal note:Additional content

  (2) The Agency shall include in every report referred to in subsection (1)

  • (a) the Agency’s assessment of the operation of this Act and any difficulties observed in the administration of this Act;

  • (b) in respect of the year to which the report relates, information about, including the number of, the following:

    • (i) inspections conducted under this Act for a purpose related to verifying compliance or preventing non-compliance with any provision of regulations made under subsection 170(1) or with any of sections 60 to 62 of the Accessible Canada Act,

    • (ii) orders made under section 181.2,

    • (iii) orders, in writing, made under section 26 that require any person to do or to refrain from doing any thing that they are or may be required to do or are prohibited from doing under any provision of regulations made under subsection 170(1) or any of sections 60 to 62 of the Accessible Canada Act,

    • (iv) notices of violation issued under section 180 that identify a violation referred to in subsection 177(3), and

    • (v) inquiries made under any of sections 172, 172.1 and 172.3;

  • (c) the Agency’s observations about whether the information referred to in paragraph (b) discloses any systemic or emerging issues in respect of any matter or thing that concerns transportation to which the legislative authority of Parliament extends and that relates to the mobility of persons with disabilities; and

  • (d) any other information prescribed by regulations made under subsection (2.01).

• Marginal note:Regulations

  (2.01) For the purpose of paragraph (2)(d), the Governor in Council may make regulations prescribing information about any matter or thing that concerns transportation to which the legislative authority of Parliament extends and that relates to the mobility of persons with disabilities.

• Marginal note:Railway transportation

  (2.1) The report shall include the number and nature of the applications, complaints and submissions for arbitration made under Parts III and IV, the manner they were dealt with and the systemic trends observed. The report shall also include the number of disputes that were mediated by the Agency and the number that were resolved through mediation by the Agency.

• Marginal note:Confidential information

  (2.2) The Agency shall ensure that the report does not include any confidential information.

• Marginal note:Tabling of report

  (3) The Minister shall have a copy of each report made under this section laid before each House of Parliament on any of the first thirty days on which that House is sitting after the Minister receives it.

Governor in Council

Directions to Agency

Marginal note:Policy directions

• 43 (1) The Governor in Council may, at the request of the Agency or of the Governor in Council’s own motion, issue policy directions to the Agency concerning any matter that comes within the jurisdiction of the Agency and every such direction shall be carried out by the Agency under the Act of Parliament that establishes the powers, duties and functions of the Agency in relation to the subject-matter of the direction.

• Marginal note:Limitation on directions

  (2) A direction issued under subsection (1) shall not affect a matter that is before the Agency on the date of the direction and that relates to a particular person.

Marginal note:Delay of binding effect

44 A direction issued under section 43 is not binding on the Agency until the expiration of the thirtieth sitting day of Parliament after the direction has been laid before both Houses of Parliament by or on behalf of the Minister, unless the direction has been previously laid before both Houses of Parliament in proposed form by or on behalf of the Minister and thirty sitting days of Parliament have expired after the proposed direction was laid.

Marginal note:Referral to committee

45 Where a direction referred to in section 43 is issued or a proposed direction referred to in section 44 is laid before a House of Parliament, it shall be referred without delay by that House to the committee of that House that it considers appropriate to deal with the subject-matter of the direction or proposed direction.

Marginal note:Consultation required

46 Before a direction referred to in section 43 is issued or a proposed direction referred to in section 44 is laid before a House of Parliament, the Minister shall consult with the Agency with respect to the nature and subject-matter of the direction or proposed direction.

Extraordinary Disruptions

Marginal note:Governor in Council may prevent disruptions

• 47 (1) Where the Governor in Council is of the opinion that

  • (a) an extraordinary disruption to the effective continued operation of the national transportation system exists or is imminent, other than a labour disruption,

  • (b) failure to act under this section would be contrary to the interests of users and operators of the national transportation system, and

  • (c) there are no other provisions in this Act or in any other Act of Parliament that are sufficient and appropriate to remedy the situation and counter the actual or anticipated damage caused by the disruption,

  the Governor in Council may, on the recommendation of the Minister and the minister responsible for the Bureau of Competition Policy, by order, take any steps, or direct the Agency to take any steps, that the Governor in Council considers essential to stabilize the national transportation system, including the imposition of capacity and pricing restraints.

• Marginal note:Minister may consult affected persons

  (2) Before recommending that an order be made under this section, the Minister may consult with any person who the Minister considers may be affected by the order.

• Marginal note:Order is temporary

  (3) An order made under this section shall have effect for no more than ninety days after the order is made.

• Marginal note:Order to be tabled in Parliament

  (4) The Minister shall cause any order made under this section to be laid before both Houses of Parliament within seven sitting days after the order is made.

• Marginal note:Reference to Parliamentary Committee

  (5) Every order laid before Parliament under subsection (4) shall be referred for review to the Standing committee designated by Parliament for the purpose.

• Marginal note:Resolution of Parliament revoking order

  (6) Where a resolution directing that an order made under this section be revoked is adopted by both Houses of Parliament before the expiration of thirty sitting days of Parliament after the order is laid before both Houses of Parliament, the order shall cease to have effect on the day that the resolution is adopted or, if the adopted resolution specifies a day on which the order shall cease to have effect, on that specified day.

• Marginal note:Competition Act

  (7) Notwithstanding subsection 4(2), this section and anything done under the authority of this section prevail over the Competition Act.

• Marginal note:Offence

  (8) Every person who contravenes an order made under this section is guilty of an offence and liable on summary conviction

  • (a) in the case of an individual, to a fine not exceeding $5,000, and

  • (b) in the case of a corporation, to a fine not exceeding $100,000,

  for each day the person contravenes the order.

Regulations

Marginal note:Performance data of air carriers

47.1 The Governor in Council may make regulations requiring air carriers to publish information respecting their performance on their Internet site.

Minister

Authorization

Marginal note:Powers and duties

48 The Minister may, in writing, authorize any person designated by the Minister to exercise any of the powers and perform any of the duties of the Minister under this Act, either generally or otherwise provided in the instrument of authorization.

Fees and Charges

Marginal note:Regulations

48.1 The Minister may make regulations respecting fees and charges to be paid to the Minister in relation to the administration and enforcement of this Act.

Inquiries

Marginal note:Minister may request inquiry

• 49 (1) The Minister may direct the Agency to inquire into any matter or thing concerning transportation to which the legislative authority of Parliament extends and report the findings on the inquiry to the Minister as and when the Minister may require.

• Marginal note:Powers

  (2) For greater certainty, sections 38 and 39 apply in respect of an inquiry.

• Marginal note:Summary of findings

  (3) The Agency shall make public a summary of its findings that does not include any confidential information.

Transportation Information

Marginal note: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

  • (a) national transportation policy development;

  • (b) reporting under section 52;

  • (c) operational planning;

  • (d) any safety, security or subsidy program;

  • (e) any infrastructure requirement;

  • (e.1) monitoring the grain transportation and handling system; or

  • (f) the administration of this Act.

• Marginal note:Efficiency of system

  (1.001) 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 and any users, other than passengers, of the national transportation system to provide information, other than personal information as defined in section 3 of the Privacy Act, to the Minister, a person designated under section 6.11, any persons referred to in subsection (1.1) who are subject to the legislative authority of Parliament or any users, other than passengers, of the national transportation system, when and in the form and manner that the regulations may specify, for the purposes of ensuring the proper functioning of the national transportation system or increasing its efficiency.

• Marginal note:Class 1 rail carrier

  (1.01) The Governor in Council may make regulations requiring any class 1 rail carrier or class of those carriers to provide information, other than personal information as defined in section 3 of the Privacy Act, to the Minister or Agency, when and in the form and manner that the regulations may specify, for the purposes of

  • (a) determining the long-haul interswitching rate referred to in paragraph 134(1)(a); and

  • (b) communicating service and performance indicators to the public.

• Marginal note: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.

• Marginal note:Information to be provided

  (2) Information that is required to be provided under this section may include the following:

  • (a) financial information;

  • (b) information respecting traffic and operations;

  • (c) fitness and ownership information; and

  • (d) information respecting the performance of air carriers and providers of services in relation to air transportation with regard to passenger experience and the quality of service.

• Marginal note:Restriction

  (3) No regulation made under subsection (1) or (1.001) shall require or have the effect of requiring any person to provide the Minister, a person designated under section 6.11, any persons referred to in subsection (1.1) who are subject to the legislative authority of Parliament or any users, other than passengers, of the national transportation system with a contract referred to in subsection 68(1) or a contract entered into under subsection 126(1) or under section 53 of the Canada Marine Act.

• Marginal note:Limitation

  (3.1) Subsection (3) does not apply in respect of a contract entered into under subsection 126(1) to the extent that the information is required for the purpose of monitoring the grain transportation and handling system.

• Marginal note:Report on the monitoring of the grain transportation and handling system

  (3.2) The Minister must prepare, within six months after the end of each crop year, a report on the monitoring of the grain transportation and handling system and cause the report to be tabled in each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister prepares it, if the Minister

  • (a) makes a regulation under paragraph (1)(e.1); and

  • (b) uses or communicates the information provided under the regulation for the purpose of monitoring the grain transportation and handling system.

• Marginal note:Exemptions

  (4) The Minister may exempt a carrier or transportation undertaking from the application of all or any part of a regulation made under this section if the Minister is satisfied that it is not practicable for the carrier or transportation undertaking to provide the information.

• Marginal note:Consultations

  (5) The Minister may consult with the Agency or Statistics Canada before making any regulation under this section.

Marginal note:Externally produced documents

• 50.01 (1) A regulation made under subsection 50(1) or (1.01) may incorporate by reference any document that is produced by a person or body other than the Minister.

• Marginal note:Type of incorporation by reference

  (2) A document may be incorporated by reference either as it exists on a particular date or as it is amended from time to time.

• Marginal note:Accessibility of incorporated document

  (3) The Minister must ensure that a document that is incorporated by reference is accessible.

• Marginal note:No finding of guilt or administrative sanction

  (4) A person is not liable to be found guilty of an offence or subjected to an administrative sanction for any contravention in respect of which a document that is incorporated by reference is relevant unless, at the time of the alleged contravention, the document was accessible as required by subsection (3) or it was otherwise accessible to that person.

• Marginal note:No registration or publication

  (5) For greater certainty, a document that is incorporated by reference is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.

Marginal note:Existing power not limited

50.02 For greater certainty, an express power in this Act to incorporate by reference does not limit the power that otherwise exists to incorporate by reference in a regulation made under this Act.

Marginal note:Information already provided

50.1 For the purposes of subsection 50(1) or (1.01), 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.

Marginal note:Confidentiality of information — Minister or designated person

• 51 (1) Except as otherwise specifically provided in this Act or any other Act of Parliament, information required to be provided under this Act to the Minister or a person designated under section 6.11 is, when it is received by the Minister or the designated person, confidential and must not knowingly be disclosed or made available by any person without the authorization of the person who provided the information, except for the purposes of a prosecution of a contravention of section 173.

• Marginal note:Communication of information

  (2) Subsection (1) does not apply so as to prohibit

  • (a) the communication of information to the Agency, the Administrator of the Fund appointed under section 153.7, Statistics Canada or a minister of the Crown in right of Canada, the agent of that 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;

  • (a.1) the communication of information that is provided under regulations made under subsection 50(1.001) to persons referred to in subsection 50(1.1) who are subject to the legislative authority of Parliament or any users, other than passengers, of the national transportation system;

  • (a.2) the communication of information prescribed in the regulations to persons prescribed in the regulations;

  • (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 communication of information, including to the public, 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.

• Marginal note: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).

• Marginal note:Regulations

  (2.2) The Governor in Council may make regulations prescribing information and persons for the purposes of paragraph (2)(a.2).

• Marginal note:Safe and secure procedures

  (3) The Minister and any person designated under section 6.11 shall ensure that the procedures and physical measures taken to ensure the confidentiality of information provided to them under this Act, including the keeping of electronic data, are safe and secure.

• Marginal note:Requirement for other persons to maintain confidentiality

  (4) Any person who receives from the Minister or a person designated under section 6.11 information that is confidential under this Act shall not knowingly disclose that information and shall take the measures necessary to maintain its confidentiality.

Marginal note:Publication

51.1 Despite subsection 51(1), the Minister may make public

• (a) information related to service and performance indicators provided in accordance with regulations made under paragraph 50(1.01)(b); and

• (b) information referred to in paragraph 50(2)(d).

Marginal note:Confidential information — other persons

• 51.11 (1) Information that is required to be provided under subsection 50(1.001) to persons referred to in subsection 50(1.1) who are subject to the legislative authority of Parliament or any users, other than passengers, of the national transportation system is, when it is received by those persons, confidential and must not knowingly be disclosed or made available by any person without the authorization of the person who provided the information, except for the purposes of a prosecution of a contravention of section 173.

• Marginal note:Safe and secure procedures

  (2) The persons referred to in subsection 50(1.1) who are subject to the legislative authority of Parliament and any users, other than passengers, of the national transportation system must ensure that the procedures and physical measures taken to ensure the confidentiality of information provided to them under this Act, including the keeping of electronic data, are safe and secure.

Marginal note:Confidentiality of information — Agency

51.2 Information that is required to be provided to the Agency in accordance with regulations made under paragraph 50(1.01)(a) is, when it is received by the Agency, confidential and shall not knowingly be disclosed or made available by any person without the authorization of the person who provided the information, except for the purpose of a prosecution of a contravention of section 173.

Marginal note:Use of information

51.3 Information that is provided to the Minister or the Agency in accordance with regulations made under paragraph 50(1.01)(a) is only to be used by the Agency for the purpose of determining the long-haul interswitching rate referred to in paragraph 134(1)(a) and, despite subsection 51(4) and section 51.2, the Agency may, for that purpose, communicate the information in an aggregated form.

Marginal note:Publication

• 51.4 (1) If the Agency receives information from class 1 rail carriers or the Minister that is related to service and performance indicators provided in accordance with regulations made under paragraph 50(1.01)(b), the Agency shall publish the information on its Internet site within two days after it is received.

• Marginal note:Information received from Minister

  (2) Subsection 51(4) does not apply to the publication, in accordance with subsection (1), of information that is received from the Minister.

Marginal note:Order

• 51.5 (1) If the Minister is of the opinion that there exists an unusual and significant disruption to the effective continued operation of the national transportation system, the Minister may, by order, require any persons referred to in subsection 50(1.1) who are subject to the legislative authority of Parliament or any users, other than passengers, of the national transportation system to provide to the Minister information, other than personal information as defined in section 3 of the Privacy Act, that the Minister considers relevant to the assessment of the cause of the disruption or the mitigation or resolution of the disruption.

• Marginal note:Order is temporary

  (2) An order made under this section has effect for the period, not exceeding 90 days, that is specified in the order.

• Marginal note:Not a statutory instrument

  (3) The order is not a statutory instrument within the meaning of the Statutory Instruments Act.

• Marginal note:Disclosure of information

  (4) Despite subsection 51(1), the Minister may disclose information that has been provided to the Minister under this section to any person for the purposes of the mitigation or resolution of the disruption.

Industry Review

Marginal note: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.

• Marginal note: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, indirectly 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.

Review of Act

Marginal note: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.

• Marginal note: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).

• Marginal note:Consultations

  (3) The review shall be undertaken in consultation with purchasers and suppliers of transportation services and any other persons whom the Minister considers appropriate.

• Marginal note:Powers on review

  (4) Every person appointed to carry out the review has, for the purposes of the review, the powers of a commissioner under Part I of the Inquiries Act and may engage the services of experts, professionals and other staff deemed necessary for making the review at the rates of remuneration that the Treasury Board approves.

• Marginal note: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).

• Marginal note:Tabling of report

  (6) The Minister shall have a copy of the report laid before each House of Parliament on any of the first thirty days on which that House is sitting after the Minister receives it.

Review of Mergers and Acquisitions

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Not statutory instruments

  (3) The guidelines referred to in subsection (2) are not statutory instruments within the meaning of the Statutory Instruments Act.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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).

• Marginal note: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.

• Marginal note:Report to be made public

  (3) The report shall be made public immediately after its receipt by the Minister.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Compliance with terms and conditions

  (10) Every person who is subject to terms and conditions shall comply with them.

Marginal note: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).

Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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).

Review of Arrangements Involving Two or More Transportation Undertakings Providing Air Services

Marginal note:Definitions

53.7 The following definitions apply in sections 53.71 to 53.84.

arrangement

arrangement means an agreement or arrangement, other than a transaction referred to in subsection 53.1(1), involving two or more transportation undertakings providing air services, as defined in subsection 55(1), to, from or within Canada, to coordinate on any aspect of the operation or marketing of such services, including prices, routes, schedules, capacity or ancillary services and to share costs or revenues or other resources or benefits. (entente)

party

party means any person who proposes to enter into or has entered into an arrangement for which a notice has been given under subsection 53.71(1). (partie)

Marginal note:Notice

• 53.71 (1) Every person who proposes to enter into an arrangement may notify the Minister of that arrangement. If the person so notifies the Minister, they shall at the same time provide a copy of the notice to the Commissioner of Competition.

• Marginal note:Information

  (2) A notice given under subsection (1) shall contain any information that is required under the guidelines that are issued and published by the Minister, including information that relates to considerations respecting competition.

• Marginal note:Guidelines

  (3) The guidelines referred to in subsection (2) shall be developed in consultation with the Competition Bureau and shall include factors that may be considered by the Minister to determine whether a proposed arrangement raises significant considerations with respect to the public interest under subsection (6) and, if applicable, to render a final decision regarding the arrangement under subsection 53.73(8).

• Marginal note:Not statutory instruments

  (4) The guidelines referred to in subsection (2) are not statutory instruments within the meaning of the Statutory Instruments Act.

• Marginal note:Further information

  (5) The Minister or the Commissioner may, after receiving a notice or copy of a notice under subsection (1), require any party to provide further information.

• Marginal note:Minister’s response

  (6) The Minister shall, within 45 days after the day on which he or she receives the notice with the information referred to in subsection (2), inform the parties and the Commissioner as to whether, in his or her opinion, the proposed arrangement raises significant considerations with respect to the public interest.

• Marginal note:No significant public interest considerations

  (7) If the Minister is of the opinion that the proposed arrangement does not raise significant considerations with respect to the public interest, sections 53.72 to 53.79 do not apply to that arrangement.

• Marginal note:Significant public interest considerations

  (8) If the Minister is of the opinion that the proposed arrangement raises significant considerations with respect to the public interest, the arrangement is subject to the review process set out in section 53.73.

Marginal note:Prohibition

53.72 If a notice has been given under subsection 53.71(1), the proposed arrangement shall not be completed without the Minister’s authorization under subsection 53.73(8).

Marginal note:Review process

• 53.73 (1) The Minister, or a person designated by the Minister, shall examine the proposed arrangement, if it is subject to the review process.

• Marginal note:Commissioner’s report

  (2) The Commissioner of Competition shall, within 120 days after the day on which he or she receives a copy of the notice under subsection 53.71(1) with the information referred to in subsection 53.71(2), report to the Minister and the parties on any concerns regarding potential prevention or lessening of competition that may occur as a result of the proposed arrangement.

• Marginal note:Summary

  (3) Unless a notice is withdrawn or is deemed to have been withdrawn under section 53.8, the Commissioner shall make public a summary of the conclusions of the report that does not include any confidential information.

• Marginal note:Communicating concerns

  (4) The Minister shall, within 150 days after the day on which he or she receives the notice with the information referred to in subsection 53.71(2), report to the parties on any concerns with respect to the public interest that may occur as a result of the proposed arrangement and provide a copy of the report to the Commissioner.

• Marginal note:Measures to address concerns

  (5) The parties shall, within 30 days after the day on which they receive the report under subsection (4), respond in writing to the Minister, addressing any concerns with respect to the public interest and competition raised by the Minister and the Commissioner and informing the Minister, among other things, of any measures they are prepared to undertake to address those concerns. The parties may propose amendments to the arrangement.

• Marginal note:Preliminary decision

  (6) The Minister shall, after consulting with the Commissioner and within 45 days after the day on which he or she receives the response from the parties under subsection (5), render a preliminary decision regarding the proposed arrangement and specify any terms and conditions relating to the public interest and competition under which an authorization could be given under subsection (8).

• Marginal note:Response to preliminary decision

  (7) The parties shall, within 30 days after the day on which they receive the Minister’s preliminary decision, provide a response in writing to the Minister and the response may include proposed amendments to the terms and conditions specified in the decision.

• Marginal note:Final decision

  (8) The Minister shall, within 30 days after the day on which he or she receives a response from the parties under subsection (7), render a final decision and make public a summary of that decision that does not include any confidential information. The Minister may, if satisfied that the proposed arrangement is in the public interest, authorize it and specify any terms and conditions relating to the public interest and competition that the Minister considers appropriate.

Marginal note:Canadian

53.74 An authorization given by the Minister under subsection 53.73(8) does not affect any requirement that a transportation undertaking providing air services, as defined in subsection 55(1), be Canadian, as defined in that subsection.

Marginal note:Varying or rescinding terms and conditions

53.75 On application by any party who is subject to terms and conditions of an authorization, the Minister may, after consulting with the Commissioner of Competition, vary or rescind the terms and conditions and shall make public a summary of that decision that does not include any confidential information.

Marginal note:Proposed amendment to arrangement

• 53.76 (1) The parties to an authorized arrangement may propose an amendment to that arrangement to the Minister and he or she may, after consulting with the Commissioner of Competition and considering the significance of the amendment,

  • (a) authorize the amendment, subject to any terms and conditions that the Minister may impose; or

  • (b) require the parties to submit a new notice under subsection 53.71(1) for review of the proposed amended arrangement, unless the parties decide not to proceed with the amendment.

• Marginal note:No confidential information made public

  (2) If the Minister authorizes the amendment under paragraph (1)(a), he or she shall make public a summary of that decision that does not include any confidential information.

Marginal note:Concerns regarding authorized arrangement

• 53.77 (1) The Minister may, at any time after the second anniversary of the day on which an arrangement is authorized, notify the parties of any concerns raised by the arrangement with respect to the public interest and competition.

• Marginal note:Measures to address concerns

  (2) The parties shall, within 45 days after the day on which they receive the notice under subsection (1), provide a response in writing to the Minister, specifying, among other things, any measures they are prepared to undertake to address those concerns. The parties may propose amendments to the arrangement.

• Marginal note:Continuing the authorization

  (3) If, after consulting with the Commissioner, the Minister determines that the arrangement is still in the public interest, the authorization is continued subject to any new or amended terms and conditions specified by the Minister to address the concerns referred to in subsection (1).

Marginal note:Obligation to comply with terms and conditions

53.78 Every person who is subject to terms and conditions under subsection 53.73(8), section 53.75, paragraph 53.76(a) or subsection 53.77(3) shall comply with them.

Marginal note:Revoking authorization — false or misleading information

• 53.79 (1) The Minister may revoke an authorization at any time if it was granted on the basis of information that is false or misleading in a material respect or if the parties fail to comply with any of the authorization’s terms or conditions.

• Marginal note:Revoking authorization — other grounds

  (2) The Minister may also revoke the authorization of an arrangement if

  • (a) that arrangement is significantly amended without prior authorization; or

  • (b) the Minister, after considering any response of the parties to the concerns raised under subsection 53.77(1), is no longer satisfied that the arrangement is in the public interest.

Marginal note:Withdrawing notice

• 53.8 (1) A notice given under subsection 53.71(1) may be withdrawn at any time before a final decision is rendered under subsection 53.73(8).

• Marginal note:Deemed withdrawal

  (2) A notice is deemed to have been withdrawn if the parties fail to respond to the Minister within any period specified in subsection 53.73(5) or (7) or any extended period, as the case may be.

• Marginal note:Effect of withdrawal

  (3) If a notice given under subsection 53.71(1) is withdrawn or is deemed to have been withdrawn, section 53.72 no longer applies to the proposed arrangement.

Marginal note:Extension of time

53.81 The Minister may, at the request of the parties or on the Minister’s own initiative, extend any period specified in section 53.71, 53.73 or 53.77 if the Minister considers it appropriate in the circumstances, including when the arrangement is exceptionally complex.

Marginal note:Order

53.82 If a person contravenes sections 53.72 or 53.78, 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.

Marginal note:Offence — section 53.72 or 53.78

• 53.83 (1) Every person who contravenes section 53.72 or 53.78 is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years or to a fine of not more than $10,000,000, or to both.

• Marginal note:Continuing offence

  (2) If an offence under subsection (1) for the contravention of section 53.78 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.

• Marginal note:Officers, etc., of corporations

  (3) If a corporation commits an offence under subsection (1), 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.

• Marginal note:Sections 174 and 175 do not apply

  (4) Sections 174 and 175 do not apply in respect of an offence committed under subsection (1).

Marginal note:Cost recovery

• 53.84 (1) The Governor in Council may make regulations respecting

  • (a) the fees to be paid by the parties to an arrangement for any activities undertaken by the Minister under sections 53.71 to 53.76 that are related to the arrangement, including the method of calculating the fees; and

  • (b) the refund of all or part of any fee referred to in paragraph (a), including the method of calculating the refund.

• Marginal note:Amounts not to exceed cost

  (2) The fees referred to in paragraph (1)(a) shall not exceed the costs related to the activities undertaken by the Minister under sections 53.71 to 53.76 that are related to the arrangement.

• Marginal note:Remittance of fees and charges

  (3) The fees paid in accordance with regulations made under subsection (1) shall be deposited to the credit of the Receiver General in the time and manner prescribed under those regulations.

• Marginal note:Spending authority

  (4) The Minister may spend the amounts deposited under subsection (3) in the fiscal year in which they are paid or in the next fiscal year.

General

Marginal note:Appointment of receiver not to bar jurisdiction

• 54 (1) The fact that a receiver, manager or other official of a carrier, or a receiver of the property of a carrier, has been appointed by a court in Canada, or is managing or operating a mode of transportation under the authority of any such court, is not a bar to the exercise of any jurisdiction granted under this Act, but every such receiver, manager or official is bound to manage and operate the mode of transportation in accordance with this Act and with the orders, regulations and directions made or issued under this Act, notwithstanding the fact that the receiver, manager, official or person has been appointed by or acts under the authority of a court.

• Marginal note:Adaptation orders

  (2) Wherever by reason of insolvency, sale under mortgage or any other cause, a transportation undertaking or a portion of a transportation undertaking is operated, managed or held otherwise than by the carrier, the Agency or the Minister may make any order it considers proper for adapting and applying the provisions of this Act.

PART IIAir Transportation

Interpretation and Application

Marginal note:Definitions

• 55 (1) In this Part,

  aircraft

  aircraft has the same meaning as in subsection 3(1) of the Aeronautics Act; (aéronef)

  air service

  air service means a service, provided by means of an aircraft, that is publicly available for the transportation of passengers or goods, or both; (service aérien)

  basic fare

  basic fare means

  • (a) the fare in the tariff of the holder of a domestic licence that has no restrictions and represents the lowest amount to be paid for one-way air transportation of an adult with reasonable baggage between two points in Canada, or

  • (b) where the licensee has more than one such fare between two points in Canada and the amount of any of those fares is dependent on the time of day or day of the week of travel, or both, the highest of those fares; (prix de base)

  Canadian

  Canadian means

  • (a) a Canadian citizen or a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act,

  • (b) a government in Canada or an agent or mandatary of such a government, or

  • (c) a corporation or entity that is incorporated or formed under the laws of Canada or a province, that is controlled in fact by Canadians and of which at least 51% of the voting interests are owned and controlled by Canadians and where

    • (i) no more than 25% of the voting interests are owned directly or indirectly by any single non-Canadian, either individually or in affiliation with another person, and

    • (ii) no more than 25% of the voting interests are owned directly or indirectly by one or more non-Canadians authorized to provide an air service in any jurisdiction, either individually or in affiliation with another person; (Canadien)

  Canadian aviation document

  Canadian aviation document has the same meaning as in subsection 3(1) of the Aeronautics Act; (document d’aviation canadien)

  domestic licence

  domestic licence means a licence issued under section 61; (Version anglaise seulement)

  domestic service

  domestic service means an air service between points in Canada, from and to the same point in Canada or between Canada and a point outside Canada that is not in the territory of another country; (service intérieur)

  international service

  international service means an air service between Canada and a point in the territory of another country; (service international)

  licensee

  licensee means the holder of a licence issued by the Agency under this Part; (licencié)

  non-scheduled international licence

  non-scheduled international licence means a licence issued under subsection 73(1); (Version anglaise seulement)

  non-scheduled international service

  non-scheduled international service means an international service other than a scheduled international service; (service international à la demande)

  prescribed

  prescribed means prescribed by regulations made under section 86; (règlement)

  scheduled international licence

  scheduled international licence means a licence issued under subsection 69(1); (Version anglaise seulement)

  scheduled international service

  scheduled international service means an international service that is a scheduled service pursuant to

  • (a) an agreement or arrangement for the provision of that service to which Canada is a party, or

  • (b) a determination made under section 70; (service international régulier)

  tariff

  tariff means a schedule of fares, rates, charges and terms and conditions of carriage applicable to the provision of an air service and other incidental services. (tarif)

• Marginal note:Affiliation

  (2) For the purposes of this Part,

  • (a) one corporation is affiliated with another corporation if

    • (i) one of them is a subsidiary of the other,

    • (ii) both are subsidiaries of the same corporation, or

    • (iii) both are controlled by the same person;

  • (b) if two corporations are affiliated with the same corporation at the same time, they are deemed to be affiliated with each other;

  • (c) a partnership or sole proprietorship is affiliated with another partnership or sole proprietorship if both are controlled by the same person;

  • (d) a corporation is affiliated with a partnership or a sole proprietorship if both are controlled by the same person;

  • (e) a corporation is a subsidiary of another corporation if it is controlled by that other corporation or by a subsidiary of that other corporation;

  • (f) a corporation is controlled by a person other than Her Majesty in right of Canada or a province if

    • (i) securities of the corporation to which are attached more than 50% of the votes that may be cast to elect directors of the corporation are held, directly or indirectly, whether through one or more subsidiaries or otherwise, otherwise than by way of security only, by or for the benefit of that person, and

    • (ii) the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the corporation;

  • (g) a corporation is controlled by Her Majesty in right of Canada or a province if

    • (i) the corporation is controlled by Her Majesty in the manner described in paragraph (f), or

    • (ii) in the case of a corporation without share capital, a majority of the directors of the corporation, other than ex officio directors, are appointed by

      • (A) the Governor in Council or the Lieutenant Governor in Council of the province, as the case may be, or

      • (B) a Minister of the government of Canada or the province, as the case may be; and

  • (h) a partnership is controlled by a person if the person holds an interest in the partnership that entitles the person to receive more than 50% of the profits of the partnership or more than 50% of its assets on dissolution.

• Marginal note:Definition of person

  (3) In subsection (2), person includes an individual, a partnership, an association, a corporation, a trustee, an executor, a liquidator of a succession, an administrator or a legal representative.

• Marginal note:Control in fact

  (4) For greater certainty, nothing in subsection (2) shall be construed to affect the meaning of the expression “controlled in fact” in the definition Canadian in subsection (1).

Marginal note: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.

• Marginal note:Specialty service exclusion

  (2) This Part does not apply to the operation of specialty services provided by aircraft, including firefighting, flight training, sightseeing, spraying, surveying, mapping, photography, parachute jumping, glider towing, helicopter-lift for logging and construction, airborne agricultural, industrial and inspection services or any other prescribed service provided by aircraft.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Not a statutory instrument

  (5) The order is not a statutory instrument within the meaning of the Statutory Instruments Act.

56.1 [Repealed, 2007, c. 19, s. 15]

56.2 [Repealed, 2007, c. 19, s. 15]

56.3 [Repealed, 2007, c. 19, s. 15]

56.4 [Repealed, 2007, c. 19, s. 15]

56.5 [Repealed, 2007, c. 19, s. 15]

56.6 [Repealed, 2007, c. 19, s. 15]

56.7 [Repealed, 2007, c. 19, s. 15]

Prohibitions

Marginal note:Prohibition re operation

57 No person shall operate an air service unless, in respect of that service, the person

• (a) holds a licence issued under this Part;

• (b) holds a Canadian aviation document; and

• (c) has the prescribed liability insurance coverage.

Marginal note:Licence not transferable

58 A licence issued under this Part for the operation of an air service is not transferable.

Marginal note: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.

Marginal note:Provision of aircraft with flight crew

• 60 (1) No person shall provide all or part of an aircraft, with a flight crew, to a licensee for the purpose of providing an air service pursuant to the licensee’s licence and no licensee shall provide an air service using all or part of an aircraft, with a flight crew, provided by another person except

  • (a) in accordance with regulations made by the Agency respecting disclosure of the identity of the operator of the aircraft and other related matters; and

  • (b) where prescribed, with the approval of the Agency.

• Marginal note:Conditions and Ministerial directions

  (2) Approval by the Agency under subsection (1) is subject to any directions to the Agency issued by the Minister and to any terms and conditions that the Agency may specify in the approval, including terms and conditions respecting routes to be followed, points or areas to be served, size and type of aircraft to be operated, schedules, places of call, tariffs, fares, rates and charges, insurance, carriage of passengers and, subject to the Canada Post Corporation Act, carriage of goods.

Licence for Domestic Service

Marginal note:Issue of licence

61 On application to the Agency and on payment of the specified fee, the Agency shall issue a licence to operate a domestic service to the applicant if

• (a) the applicant establishes in the application to the satisfaction of the Agency that the applicant

  • (i) is a Canadian,

  • (ii) holds a Canadian aviation document in respect of the service to be provided under the licence,

  • (iii) has the prescribed liability insurance coverage in respect of the service to be provided under the licence, and

  • (iv) meets prescribed financial requirements; and

• (b) the Agency is satisfied that the applicant has not contravened section 59 in respect of a domestic service within the preceding twelve months.

Marginal note:Qualification exemption

• 62 (1) Where the Minister considers it necessary or advisable in the public interest that a domestic licence be issued to a person who is not a Canadian, the Minister may, by order, on such terms and conditions as may be specified in the order, exempt the person from the application of subparagraph 61(a)(i) for the duration of the order.

• Marginal note:Statutory Instruments Act

  (2) The order is not a regulation for the purposes of the Statutory Instruments Act.

• Marginal note:Publication

  (3) The Minister must, as soon as feasible, make the name of the person who is exempted and the exemption’s duration accessible to the public through the Internet or by any other means that the Minister considers appropriate.

Marginal note:Mandatory suspension or cancellation

• 63 (1) The Agency shall suspend or cancel the domestic licence of a person where the Agency determines that, in respect of the service for which the licence was issued, the person ceases to meet any of the requirements of subparagraphs 61(a)(i) to (iii).

• Marginal note:Discretionary suspension or cancellation

  (2) The Agency may suspend or cancel a domestic licence

  • (a) where the Agency determines that, in respect of the service for which the domestic licence was issued, the licensee has contravened, or does not meet the requirements of, any regulation or order made under this Part or any provision of this Part other than subparagraphs 61(a)(i) to (iii); or

  • (b) subject to section 64, in accordance with a request from the licensee for the suspension or cancellation.

• Marginal note:Reinstatement condition

  (3) The Agency shall not reinstate a domestic licence that has been suspended for sixty days or longer unless the licensee establishes to the satisfaction of the Agency that the person meets the prescribed financial requirements.

Marginal note:Notice of discontinuance or reduction of certain services

• 64 (1) Where a licensee proposes to discontinue a domestic service or to reduce the frequency of such a service to a point to less than one flight per week and, as a result of the proposed discontinuance or reduction, there will be only one licensee or no licensee offering at least one flight per week to that point, the licensee shall give notice of the proposal in prescribed form and manner to such persons as are prescribed.

• Marginal note:Notice of discontinuance of certain services

  (1.1) If a licensee proposes to discontinue its year-round non-stop scheduled air service between two points in Canada and that discontinuance would result in a reduction, as compared to the week before the proposal is to take effect, of at least 50% of the weekly passenger-carrying capacity of all licensees operating year-round non-stop scheduled air services between those two points, the licensee shall give notice of the proposal in the prescribed form and manner to the prescribed persons.

• Marginal note: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.

• Marginal note:Notice period

  (2) A licensee shall not implement a proposal referred to in subsection (1) or (1.1) until the expiry of 120 days, or 30 days if the service referred to in that subsection has been in operation for less than one year, after the notice is given or until the expiry of any shorter period that the Agency may, on application by the licensee, specify by order.

• Marginal note:Considerations re whether exemption to be granted

  (3) In considering whether to specify a shorter period under subsection (2), the Agency shall have regard to

  • (a) the adequacy of alternative modes of public transportation available at or in the vicinity of the point referred to in subsection (1) or between the points referred to in subsection (1.1);

  • (b) other means by which air service to the point or between the points is or is likely to be provided;

  • (c) whether the licensee has complied with subsection (1.2); and

  • (d) the particular circumstances of the licensee.

• Definition of non-stop scheduled air service

  (4) In this section, non-stop scheduled air service means an air service operated between two points without any stops in accordance with a published timetable or on a regular basis.

Marginal note:Complaints re non-compliance

65 Where, on complaint in writing to the Agency by any person, the Agency finds that a licensee has failed to comply with section 64 and that it is practicable in the circumstances for the licensee to comply with an order under this section, the Agency may, by order, direct the licensee to reinstate the service referred to in that section

• (a) for such a period, not exceeding 120 days after the date of the finding by the Agency, as the Agency deems appropriate; and

• (b) at such a frequency as the Agency may specify.

Marginal note:Unreasonable fares or rates

• 66 (1) If, on complaint in writing to the Agency by any person, the Agency finds that a licensee, including affiliated licensees, is the only person providing a domestic service between two points and that a fare, cargo rate or increase in a fare or cargo rate published or offered in respect of the service is unreasonable, the Agency may, by order,

  • (a) disallow the fare, rate or increase;

  • (b) direct the licensee to amend its tariff by reducing the fare, rate or increase by the amounts and for the periods that the Agency considers reasonable in the circumstances; or

  • (c) direct the licensee, if practicable, to refund amounts specified by the Agency, with interest calculated in the prescribed manner, to persons determined by the Agency to have been overcharged by the licensee.

• Marginal note:Complaint of inadequate range of fares or rates

  (2) If, on complaint in writing to the Agency by any person, the Agency finds that a licensee, including affiliated licensees, is the only person providing a domestic service between two points and that it is offering an inadequate range of fares or cargo rates in respect of that service, the Agency may, by order, direct the licensee, for a period that the Agency considers reasonable in the circumstances, to publish and apply in respect of that service one or more additional fares or cargo rates that the Agency considers reasonable in the circumstances.

• Marginal note: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

  • (a) historical data respecting fares or cargo rates applicable to domestic services between those two points;

  • (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;

  • (b.1) the competition from other modes of transportation, if the finding is in respect of a cargo rate, an increase in a cargo rate or a range of cargo rates; and

  • (c) any other information provided by the licensee, including information that the licensee is required to provide under section 83.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Consideration of representations

  (5) Before making a direction under paragraph (1)(b) or subsection (2), the Agency shall consider any representations that the licensee has made with respect to what is reasonable in the circumstances.

• (6) and (7) [Repealed, 2007, c. 19, s. 19]

• Marginal note:Confidentiality of information

  (8) The Agency may take any measures or make any order that it considers necessary to protect the confidentiality of any of the following information that it is considering in the course of any proceedings under this section:

  • (a) information that constitutes a trade secret;

  • (b) information the disclosure of which would likely cause material financial loss to, or prejudice to the competitive position of, the person providing the information or on whose behalf it is provided; and

  • (c) information the disclosure of which would likely interfere with contractual or other negotiations being conducted by the person providing the information or on whose behalf it is provided.

Marginal note:Tariffs to be made public

• 67 (1) The holder of a domestic licence shall

  • (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;

  • (b) in its tariffs, specifically identify the basic fare between all points for which a domestic service is offered by the licensee; and

  • (c) retain a record of its tariffs, and publish them on its Internet site, for a period of not less than three years after the tariffs have ceased to have effect.

• Marginal note:Prescribed tariff information to be included

  (2) A tariff referred to in subsection (1) shall include such information as may be prescribed.

• Marginal note:No fares, etc., unless set out in tariff

  (3) The holder of a domestic licence shall not apply any fare, rate, charge or term or condition of carriage applicable to the domestic service it offers unless the fare, rate, charge, term or condition is set out in a tariff that has been published or displayed under subsection (1) and is in effect.

• Marginal note:Copy of tariff on payment of fee

  (4) The holder of a domestic licence shall provide a copy or excerpt of its tariffs to any person on request and on payment of a fee not exceeding the cost of making the copy or excerpt.

67.1 [Repealed, 2023, c. 26, s. 454]

Marginal note:Unreasonable or unduly discriminatory terms or conditions

• 67.2 (1) If the Agency finds that the holder of a domestic licence has applied terms or conditions of carriage applicable to the domestic service it offers that are unreasonable or unduly discriminatory, the Agency may suspend or disallow those terms or conditions and substitute other terms or conditions in their place.

• Marginal note:Prohibition on advertising

  (2) The holder of a domestic licence shall not advertise or apply any term or condition of carriage that is suspended or has been disallowed.

67.3 [Repealed, 2023, c. 26, s. 456]

Marginal note:Applying decision to other passengers

67.4 The Agency may, to the extent that it considers it appropriate, make applicable to some or to all passengers of the same flight as the complainant all or part of its decision respecting a complaint related to any term or condition of carriage concerning any obligation prescribed by regulations made under paragraph 86.11(1)(b).

Marginal note:Non-application of fares, etc.

• 68 (1) Sections 66 to 67.2, 85.04 and 85.07 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.

• Marginal note:Non-application of terms and conditions

  (1.1) Sections 66 to 67.2, 85.04 and 85.07 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.

• Marginal note:Provisions regarding exclusive use of services

  (2) The parties to the contract shall not include in it provisions with respect to the exclusive use by the other person of a domestic service operated by the holder of the domestic licence between two points in accordance with a published timetable or on a regular basis, unless the contract is for all or a significant portion of the capacity of a flight or a series of flights.

• Marginal note:Retention of contract required

  (3) The holder of a domestic licence who is a party to the contract shall retain a copy of it for a period of not less than three years after it has ceased to have effect and, on request made within that period, shall provide a copy of it to the Agency.

Licence for Scheduled International Service

Marginal note:Issue of licence

• 69 (1) On application to the Agency and on payment of the specified fee, the Agency shall issue a licence to operate a scheduled international service to the applicant if

  • (a) the applicant establishes in the application to the satisfaction of the Agency that the applicant

    • (i) is, pursuant to subsection (2) or (3), eligible to hold the licence,

    • (ii) holds a Canadian aviation document in respect of the service to be provided under the licence,

    • (iii) has the prescribed liability insurance coverage in respect of the service to be provided under the licence, and

    • (iv) where the applicant is a Canadian, meets the prescribed financial requirements; and

  • (b) the Agency is satisfied that the applicant has not contravened section 59 in respect of the service to be provided under the licence within the preceding twelve months.

• Marginal note:Eligibility of Canadians

  (2) The Minister may, in writing, designate any Canadian as eligible to hold a scheduled international licence. That Canadian remains eligible while the designation remains in force.

• Marginal note:Eligibility of non-Canadians

  (3) A non-Canadian is eligible to hold a scheduled international licence if the non-Canadian

  • (a) has been designated by a foreign government or an agent of a foreign government to operate an air service under the terms of an agreement or arrangement between that government and the Government of Canada; and

  • (b) holds, in respect of the air service, a document issued by a foreign government or agent that, in respect of the service to be provided under the document, is equivalent to a scheduled international licence.

Marginal note:Determination of scheduled international service

70 The Minister may, in writing to the Agency,

• (a) determine that an international service is a scheduled international service; or

• (b) withdraw a determination made under paragraph (a).

Marginal note:Terms and conditions of scheduled international licence

• 71 (1) Subject to any directions issued to the Agency under section 76, the Agency may, on the issuance of a scheduled international licence or from time to time thereafter, make the licence subject, in addition to any terms and conditions prescribed in respect of the licence, to such terms and conditions as the Agency deems to be consistent with the agreement, convention or arrangement pursuant to which the licence is being issued, including terms and conditions respecting routes to be followed, points or areas to be served, size and type of aircraft to be operated, schedules, places of call, tariffs, fares, rates and charges, insurance, carriage of passengers and, subject to the Canada Post Corporation Act, carriage of goods.

• Marginal note:Compliance with terms and conditions

  (2) The holder of a scheduled international licence shall comply with every term and condition to which the licence is subject.

Marginal note:Mandatory suspension or cancellation

• 72 (1) The Agency shall suspend or cancel a scheduled international licence where the Agency determines that, in respect of the service for which the licence was issued, the licensee ceases to meet any of the requirements of subparagraphs 69(1)(a)(i) to (iii).

• Marginal note:Discretionary suspension or cancellation

  (2) The Agency may suspend or cancel a scheduled international licence

  • (a) where the Agency determines that, in respect of the service for which the licence was issued, the licensee has contravened, or does not meet the requirements of, any regulation or order made under this Part or any provision of this Part other than subparagraphs 69(1)(a)(i) to (iii); or

  • (b) in accordance with a request from the licensee for the suspension or cancellation.

• Marginal note:Reinstatement condition

  (3) The Agency shall not reinstate the scheduled international licence of a Canadian that has been suspended for sixty days or longer unless the Canadian establishes to the satisfaction of the Agency that the Canadian meets the prescribed financial requirements.

Licence for Non-scheduled International Service

Marginal note:Issue of licence

• 73 (1) Subject to any directions issued to the Agency under section 76, on application to the Agency and on payment of the specified fee, the Agency shall issue a licence to operate a non-scheduled international service to the applicant if

  • (a) the applicant establishes in the application to the satisfaction of the Agency that the applicant

    • (i) is a Canadian,

    • (ii) holds a Canadian aviation document in respect of the service to be provided under the licence,

    • (iii) has the prescribed liability insurance coverage in respect of the service to be provided under the licence, and

    • (iv) meets prescribed financial requirements; and

  • (b) the Agency is satisfied that the applicant has not contravened section 59 in respect of the service to be provided under the licence within the preceding twelve months.

• Marginal note:Non-Canadian applicant

  (2) Subject to any directions issued to the Agency under section 76, on application to the Agency and on payment of the specified fee, the Agency may issue a non-scheduled international licence to a non-Canadian applicant if the applicant establishes in the application to the satisfaction of the Agency that the applicant

  • (a) holds a document issued by the government of the applicant’s state or an agent of that government that, in respect of the service to be provided under the document, is equivalent to the non-scheduled international licence for which the application is being made; and

  • (b) meets the requirements of subparagraphs (1)(a)(ii) and (iii) and paragraph (1)(b).

Marginal note:Terms and conditions of non-scheduled international licence

• 74 (1) Subject to any directions issued to the Agency under section 76, the Agency may, on the issuance of a non-scheduled international licence or from time to time thereafter, make the licence subject, in addition to any terms and conditions prescribed in respect of the licence, to such terms and conditions as the Agency deems appropriate, including terms and conditions respecting points or areas to be served, size and type of aircraft to be operated, schedules, places of call, tariffs, fares, rates and charges, insurance, carriage of passengers and, subject to the Canada Post Corporation Act, carriage of goods.

• Marginal note:Compliance with terms and conditions

  (2) The holder of a non-scheduled international licence shall comply with every term and condition to which the licence is subject.

Marginal note:Mandatory suspension or cancellation

• 75 (1) The Agency shall suspend or cancel a non-scheduled international licence where the Agency determines that, in respect of the service for which the licence was issued, the licensee ceases to meet any of the requirements of

  • (a) in respect of a Canadian licensee, subparagraphs 73(1)(a)(i) to (iii); and

  • (b) in respect of a non-Canadian licensee, subparagraphs 73(1)(a)(ii) and (iii) and paragraph 73(2)(a).

• Marginal note:Discretionary suspension or cancellation

  (2) The Agency may suspend or cancel a non-scheduled international licence

  • (a) where the Agency determines that, in respect of the service for which the licence was issued, the licensee has contravened, or does not meet the requirements of, any regulation or order made under this Part or any provision of this Part other than the provisions referred to in paragraphs (1)(a) and (b); or

  • (b) in accordance with a request from the licensee for the suspension or cancellation.

• Marginal note:Reinstatement condition

  (3) The Agency shall not reinstate the non-scheduled international licence of a Canadian that has been suspended for sixty days or longer unless the Canadian establishes to the satisfaction of the Agency that the Canadian meets the prescribed financial requirements.

Issuance of International Charter Permits

Marginal note: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).

Ministerial Directions for International Service

Marginal note:Minister may issue directions

• 76 (1) Where the Minister determines that it is necessary or advisable to provide direction to the Agency in respect of the exercise of any of its powers or the performance of any of its duties or functions under this Part relating to international service,

  • (a) in the interest of the safety or security of international civil aviation,

  • (b) in connection with the implementation or administration of an international agreement, convention or arrangement respecting civil aviation to which Canada is a party,

  • (c) in the interest of international comity or reciprocity,

  • (d) for the purpose of enforcing Canada’s rights under an international agreement, convention or arrangement respecting civil aviation or responding to acts, policies or practices by a contracting party to any such agreement, convention or arrangement, or by an agency or citizen of such a party, that adversely affect or lead either directly or indirectly to adverse effects on Canadian international civil aviation services, or

  • (e) in connection with any other matter concerning international civil aviation as it affects the public interest,

  the Minister may, subject to subsection (3), issue to the Agency directions that, notwithstanding any other provision of this Part, are binding on, and shall be complied with by, the Agency in the exercise of its powers or the performance of its duties or functions under this Part relating to international service.

• Marginal note:Nature of directions

  (2) Directions issued under subsection (1) may relate to

  • (a) persons or classes of persons to whom licences to operate an international service shall or shall not be issued;

  • (b) the terms and conditions of such licences, or their variation;

  • (c) the suspension or cancellation of such licences; and

  • (d) any other matter concerning international service that is not governed by or under the Aeronautics Act.

• Marginal note:Concurrence required for certain directions

  (3) A direction by the Minister relating to a matter referred to in paragraph (1)(c), (d) or (e) may be issued only with the concurrence of the Minister of Foreign Affairs.

Duties and Powers of Agency

Marginal note:Duties and functions of Agency under international agreements, etc.

77 Where the Agency is identified as the aeronautical authority for Canada under an international agreement, convention or arrangement respecting civil aviation to which Canada is a party, or is directed by the Minister to perform any duty or function of the Minister pursuant to any such agreement, convention or arrangement, the Agency shall act as the aeronautical authority for Canada or perform the duty or function in accordance with the agreement, convention, arrangement or direction, as the case may be.

Marginal note:Agency powers qualified by certain agreements, etc.

• 78 (1) Subject to any directions issued to the Agency under section 76, the powers conferred on the Agency by this Part shall be exercised in accordance with any international agreement, convention or arrangement relating to civil aviation to which Canada is a party.

• Marginal note:Variations from agreements, etc.

  (2) Notwithstanding subsection (1) and subject to any directions issued to the Agency under section 76, the Agency may issue a licence or suspend a licence, or vary the terms and conditions of a licence, on a temporary basis for international air services that are not permitted in an agreement, convention or arrangement relating to civil aviation to which Canada is a party.

Marginal note:Agency may refuse licence — individuals

• 79 (1) Where the Agency has suspended or cancelled the licence of an individual under this Part or where an individual has contravened section 59, the Agency may, for a period not exceeding twelve months after the date of the suspension, cancellation or contravention, refuse to issue a licence in respect of an air service to the individual or to any corporation of which the individual is a principal.

• Marginal note:Agency may refuse licence — corporations

  (2) Where the Agency has suspended or cancelled the licence of a corporation under this Part or where a corporation has contravened section 59, the Agency may, for a period not exceeding twelve months after the date of the suspension, cancellation or contravention, refuse to issue a licence in respect of an air service to

  • (a) the corporation;

  • (b) any person who, as a principal of the corporation, directed, authorized, assented to, acquiesced in or participated in a contravention that gave rise to the suspension or cancellation; and

  • (c) any body corporate of which the corporation or the person referred to in paragraph (b) is a principal.

Marginal note:Exemption

• 80 (1) The Agency may, by order, on such terms and conditions as it deems appropriate, exempt a person from the application of any of the provisions of this Part or of a regulation or order made under this Part where the Agency is of the opinion that

  • (a) the person has substantially complied with the provision;

  • (b) an action taken by the person is as effective as actual compliance with the provision; or

  • (c) compliance with the provision by the person is unnecessary, undesirable or impractical.

• Marginal note:Exemption not to provide certain relief

  (2) No exemption shall be granted under subsection (1) that has the effect of relieving a person from any provision of this Part that requires a person to be a Canadian and to have a Canadian aviation document and prescribed liability insurance coverage in respect of an air service.

• Marginal note:Exemption not to provide certain relief — section 69

  (3) No exemption shall be granted under subsection (1) that has the effect of relieving a person from the provisions of section 69 that require, in order to be eligible to hold a scheduled international licence,

  • (a) a Canadian to be designated by the Minister to hold such a licence; or

  • (b) a non-Canadian to be designated by a foreign government or an agent of a foreign government to operate an air service under the terms of an agreement or arrangement between that government and the Government of Canada.

Marginal note:Inquiry into licensing matters

81 For the purposes of ensuring compliance with this Part, the Agency may inquire into any matter for which a licence, permit or other document is required under this Part.

Marginal note:Licensee to provide notification

82 Every licensee shall notify the Agency without delay, in writing, if

• (a) the liability insurance coverage in respect of the air service for which the licence is issued is cancelled or is altered in a manner that results in the failure by the licensee to have the prescribed liability insurance coverage for that service;

• (b) the licensee’s operations change in a manner that results in the failure by the licensee to have the prescribed liability insurance coverage for that service; or

• (c) any change occurs that affects, or is likely to affect, the licensee’s status as a Canadian.

Marginal note:Disclosure of information required

83 A licensee shall, at the request of the Agency, provide the Agency with information or documents available to the licensee that relate to any complaint under review or any investigation being conducted by the Agency under this Part.

Marginal note:Notification of agent required

• 84 (1) A licensee who has an agent in Canada shall, in writing, provide the Agency with the agent’s name and address.

• Marginal note:Appointment and notice of agent

  (2) A licensee who does not have a place of business or an agent in Canada shall appoint an agent who has a place of business in Canada and, in writing, provide the Agency with the agent’s name and address.

Marginal note:Notice of change of address

85 Where the address of a licensee’s principal place of business in Canada or the name or address of the licensee’s agent in Canada is changed, the licensee shall notify the Agency in writing of the change without delay.

Carrier’s Obligation

Marginal note:Process for claims

• 85.01 (1) A carrier shall establish a process for dealing with claims related to a fare, rate, charge or term or condition of carriage applicable to the air service it offers.

• Marginal note:Period to communicate decision

  (2) The process shall include an obligation for the carrier, on receipt of a written request to deal with a claim, to communicate to the claimant its decision on the claim within 30 days after the day on which it received the request.

Air Travel Complaints

Marginal note:Complaint resolution officers

• 85.02 (1) The Chairperson, or a person designated by the Chairperson, shall designate, from among the members and staff of the Agency, persons to act as complaint resolution officers for the purpose of sections 85.04 to 85.12.

• Marginal note:Limits on powers and duties

  (2) A member of the Agency or its staff who acts as a complaint resolution officer has the powers, duties and functions of a complaint resolution officer and not of the Agency.

• Marginal note:Clarification — proceedings

  (3) Proceedings before a complaint resolution officer are not proceedings before the Agency.

Marginal note:Non-application of certain provisions

85.03 Sections 17, 25 and 36.1 do not apply in respect of any matter that may be dealt with under sections 85.04 to 85.12.

Marginal note:Complaints related to tariffs

• 85.04 (1) A person may file a complaint in writing with the Agency if

  • (a) the person alleges that a carrier failed to apply a fare, rate, charge or term or condition of carriage applicable to the air service it offers that is set out in its tariffs;

  • (b) the person is adversely affected by the failure to apply that fare, rate, charge or term or condition of carriage;

  • (c) the person seeks compensation or a refund as set out in the carrier’s tariffs or compensation for expenses incurred as a result of that failure; and

  • (d) the person made a written request to the carrier to resolve the matters to which the complaint relates but they were not resolved within 30 days after the day on which the request was made.

• Marginal note:Refusal to deal with complaint

  (2) A complaint resolution officer may refuse to deal with a complaint or, at any time, cease dealing with it if they are of the opinion that

  • (a) the criteria set out in subsection (1) have not been met;

  • (b) it is clear on the face of the complaint that the carrier has complied with the obligations set out in its tariffs; or

  • (c) the complaint is vexatious or made in bad faith.

Marginal note:Mediation

• 85.05 (1) If the complaint resolution officer does not refuse under subsection 85.04(2) to deal with a complaint, they shall mediate the complaint and start the mediation no later than the 30th day after the day on which the complaint is filed.

• Marginal note:Filing of mediation agreement

  (2) 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.

Marginal note:Decision on complaint

• 85.06 (1) If no agreement is reached as a result of mediation, and the complaint resolution officer does not cease dealing with the complaint under subsection 85.04(2), the complaint resolution officer shall, no later than the 60th day after the day on which the mediation started, and based on the information provided by the complainant and the carrier,

  • (a) make an order under subsection 85.07(1); or

  • (b) make an order dismissing the complaint.

• Marginal note:Status of order

  (2) An order referred to in subsection (1) is not an order or decision of the Agency.

Marginal note:Order related to tariffs

• 85.07 (1) If the complaint resolution officer finds that the carrier that is the subject of the complaint has failed to apply a fare, rate, charge or term or condition of carriage applicable to the air service it offers that is set out in its tariffs, the complaint resolution officer may order the carrier to

  • (a) apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs; and

  • (b) compensate the complainant for any expenses they incurred as a result of the carrier’s failure to apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs.

• Marginal note:Onus

  (2) If a complaint raises an issue as to whether a flight delay, flight cancellation or denial of boarding is within a carrier’s control, is within a carrier’s control but is required for safety reasons or is outside a carrier’s control, it is presumed to be within the carrier’s control and not required for safety reasons unless the carrier proves the contrary.

• Marginal note:Filing of order and enforcement

  (3) An order made under subsection (1) may be filed with the Agency and, after filing, is enforceable as if it were an order of the Agency.

Marginal note:Prior decisions to be taken into account

85.08 In regards to the issue of whether a flight delay, flight cancellation or denial of boarding is within a carrier’s control, is within a carrier’s control but is required for safety reasons or is outside a carrier’s control, a complaint resolution officer who is dealing with a complaint in respect of a flight shall take into account any prior decision on that issue that is contained in an order made by a complaint resolution officer in respect of that flight.

Marginal note:Confidentiality of information

• 85.09 (1) All matters related to the process of dealing with a complaint shall be kept confidential, unless the complainant and the carrier otherwise agree, and information provided by the complainant or the carrier to the complaint resolution officer for the purpose of the complaint resolution officer dealing with the complaint shall not be used for any other purpose without the consent of the one who provided it.

• Marginal note:Communication of information

  (2) Subsection (1) does not apply so as to prohibit

  • (a) the communication of information to the Agency;

  • (b) the communication of information to complaint resolution officers for the purpose of assisting them in the exercise of their powers or the performance of their duties and functions; or

  • (c) the making public by the Agency of information under sections 85.14 and 85.15.

Marginal note:Procedure

85.1 Subject to the procedure set out in the guidelines referred to in section 85.12, a complaint resolution officer shall deal with complaints in the manner that they consider appropriate in the circumstances.

Marginal note:Assistance by Agency

85.11 The Agency may, at a complaint resolution officer’s request, provide administrative, technical and legal assistance to the complaint resolution officer.

Marginal note:Guidelines

• 85.12 (1) The Agency may issue guidelines

  • (a) respecting the manner of and procedures for dealing with complaints filed under subsection 85.04(1); and

  • (b) setting out the extent to which and the manner in which, in the Agency’s opinion, any provision of the regulations applies with regard to complaints.

• Marginal note:Guidelines binding

  (2) A guideline is, until it is revoked or modified, binding on any complaint resolution officer dealing with a complaint filed under subsection 85.04(1).

• Marginal note:Publication

  (3) Each guideline shall be published on the Agency’s website, in the Canada Gazette and in any other manner that the Agency considers appropriate.

• Marginal note:Statutory Instruments Act

  (4) The Statutory Instruments Act does not apply to the guideline.

Marginal note:Referral to panel

• 85.13 (1) If no agreement is reached as a result of the mediation of a complaint under section 85.05, the Chairperson or a person designated by them may, at the request of the complaint resolution officer who conducted the mediation, and if the Chairperson or person designated by them, as the case may be, considers that the complexity of the complaint requires it, refer the complaint to a panel of at least two members. Those members, none of whom is to be the complaint resolution officer who conducted the mediation, shall act as the complaint resolution officers in respect of the complaint for the purposes of sections 85.06 to 85.12.

• Marginal note:Clarification – panels

  (2) A reference in subsections 85.02(2) and (3) and sections 85.06 to 85.12 to a complaint resolution officer is considered to include a reference to a panel.

Marginal note:Publication — order or summary of order

• 85.14 (1) The Agency shall make public

  • (a) in the case of an order made by a single complaint resolution officer

    • (i) the number of the flight to which the order relates,

    • (ii) the date of departure of the flight that is indicated on the complainant’s ticket,

    • (iii) any decision contained in the order in regards to the issue of whether any flight delay, flight cancellation or denial of boarding was within the carrier’s control, was within the carrier’s control but was required for safety reasons or was outside the carrier’s control, and

    • (iv) a statement as to whether or not the complaint resolution officer ordered the carrier to provide compensation or a refund as set out in the carrier’s tariffs or compensation for expenses incurred; and

  • (b) subject to subsection (2), in the case of an order made by a panel, the entire order.

• Marginal note:Exception

  (2) The Agency may, at the request of a complainant or carrier, decide to keep confidential any part of an order, other than the information referred to in subparagraphs (1)(a)(i) to (iv).

Marginal note:Part of annual report

85.15 The Agency shall, as part of its annual report, indicate the number and nature of the complaints filed under subsection 85.04(1), the names of the carriers against whom the complaints were made, the number of complaints for which an order was made under subsection 85.07(1) and the systemic trends observed.

Marginal note:Fees and charges

• 85.16 (1) The Agency shall establish fees or charges for the purpose of recovering all or a portion of the costs that the Agency determines to be related to the process of dealing with complaints — other than complaints disposed of under subsection 85.04(2) — under sections 85.05 to 85.12.

• Marginal note:Carrier’s liability

  (2) The carriers that are the subject of complaints — other than complaints disposed of under subsection 85.04(2) — are liable for the payment of the fees or charges.

• Marginal note:Consultation

  (3) Before establishing fees or charges, the Agency shall consult with any persons or organizations that the Agency considers to be interested in the matter.

• Marginal note:Publication

  (4) The Agency shall publish the fees and charges on its Internet site.

• Marginal note:Debt due to His Majesty

  (5) Fees or charges required to be paid under this section constitute a debt to His Majesty in right of Canada and may be recovered as such in a court of competent jurisdiction.

• Marginal note:Spending authority

  (6) The Agency may spend the amounts obtained under this section in the fiscal year in which they are paid or in the next fiscal year.

• Marginal note:Service Fees Act

  (7) The Service Fees Act does not apply to the fees and charges referred to in subsection (1).

Regulations

Marginal note:Regulations

• 86 (1) The Agency may make regulations

  • (a) classifying air services;

  • (b) classifying aircraft;

  • (c) prescribing liability insurance coverage requirements for air services or aircraft;

  • (d) prescribing financial requirements for each class of air service or aircraft;

  • (e) respecting the issuance, amendment and cancellation of permits for the operation of international charters;

  • (f) respecting the duration and renewal of licences;

  • (g) respecting the amendment of licences;

  • (h) respecting traffic and tariffs, fares, rates, charges and terms and conditions of carriage for international service, including

    • (i) providing for the disallowance or suspension by the Agency of any tariff, fare, rate or charge,

    • (ii) providing for the establishment and substitution by the Agency of any tariff, fare, rate or charge disallowed by the Agency,

    • (iii) authorizing the Agency to direct a licensee or carrier to take the 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 that are applicable to the service it offers and that were set out in its tariffs, if the Agency receives a written complaint and, if the complaint is related to any term or condition of carriage concerning any obligation prescribed by regulations made under subsection 86.11(1), it is filed by the person adversely affected,

    • (iii.1) authorizing the Agency to make applicable, to some or to all passengers of the same flight as the complainant, all or part of the Agency’s decision respecting a complaint related to any term or condition of carriage concerning any obligation prescribed by regulations made under paragraph 86.11(1)(b), to the extent that it considers appropriate, 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;

  • (i) requiring licensees to file with the Agency any documents and information relating to activities under their licences that are necessary for the purposes of enabling the Agency to exercise its powers and perform its duties and functions under this Part and respecting the manner in which and the times at which the documents and information are to be filed;

  • (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;

  • (k) defining words and expressions for the purposes of this Part;

  • (l) excluding a person from any of the requirements of this Part;

  • (m) prescribing any matter or thing that by this Part is to be prescribed; and

  • (n) generally for carrying out the purposes and provisions of this Part.

• Marginal note:Exclusion not to provide certain relief

  (2) No regulation shall be made under paragraph (1)(l) that has the effect of relieving a person from any provision of this Part that requires a person to be a Canadian and to have a Canadian aviation document and prescribed liability insurance coverage in respect of an air service.

• (3) [Repealed, 2007, c. 19, s. 26]

Marginal note: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.

• Marginal note: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.

• Marginal note: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).

Marginal note:Regulations — carrier’s obligations towards passengers

• 86.11 (1) The Agency shall, after consulting with the Minister, make regulations in relation to flights to, from and within Canada, including connecting flights,

  • (a) respecting the carrier’s obligation to make terms and conditions of carriage and information regarding any recourse available against the carrier, as specified in the regulations, readily available to passengers in language that is simple, clear and concise;

  • (b) respecting the carrier’s obligations in the case of flight delay, flight cancellation or denial of boarding, including

    • (i) the minimum standards of treatment of passengers that the carrier is required to meet and the minimum compensation the carrier is required to pay for inconvenience when the delay, cancellation or denial of boarding is within the carrier’s control,

    • (ii) the minimum standards of treatment of passengers that the carrier is required to meet when the delay, cancellation or denial of boarding is within the carrier’s control, but is required for safety purposes, including in situations of mechanical malfunctions,

    • (iii) the carrier’s obligation to ensure that passengers complete their itinerary when the delay, cancellation or denial of boarding is due to situations outside the carrier’s control, such as natural phenomena and security events, and

    • (iv) the carrier’s obligation to provide timely information and assistance to passengers;

  • (c) prescribing the minimum compensation for delayed, lost or damaged baggage that the carrier is required to pay;

  • (d) respecting the carrier’s obligation to facilitate the assignment of seats to children under the age of 14 years in close proximity to a parent, guardian or tutor at no additional cost and to make the carrier’s terms and conditions and practices in this respect readily available to passengers;

  • (e) requiring the carrier to establish terms and conditions of carriage with regard to the transportation of musical instruments;

  • (f) respecting the carrier’s obligations in the case of tarmac delays over three hours, including the obligation to provide timely information and assistance to passengers, as well as the minimum standards of treatment of passengers that the carrier is required to meet; and

  • (g) respecting any of the carrier’s other obligations that the Minister may issue directions on under subsection (2).

• Marginal note:Ministerial directions

  (2) The Minister may issue directions to the Agency to make a regulation under paragraph (1)(g) respecting any of the carrier’s other obligations towards passengers. The Agency shall comply with these directions.

• Marginal note:Restriction

  (3) A person shall not receive compensation from a carrier under regulations made under subsection (1) if that person has already received compensation for the same event under a different passenger rights regime than the one provided for under this Act.

• Marginal note:Obligations deemed to be in tariffs

  (4) The carrier’s obligations established by a regulation made under subsection (1) are deemed to form part of the terms and conditions set out in the carrier’s tariffs in so far as the carrier’s tariffs do not provide more advantageous terms and conditions of carriage than those obligations.

Marginal note: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.

PART IIIRailway Transportation

DIVISION IInterpretation and Application

Marginal note:Definitions

87 In this Part,

crude oil

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; (pétrole brut)

land

land includes an interest in land and, in relation to land in the Province of Quebec, includes the interest of a lessee; (terres)

metropolitan area

metropolitan area means any area that is classified by Statistics Canada in its most recent census of Canada as a census metropolitan area; (région métropolitaine)

operate

operate includes, with respect to a railway, any act necessary for the maintenance of the railway or the operation of a train; (exploitation)

point of destination

point of destination means, with respect to traffic on a railway line that is subject to a transfer described in subsection 128(4) or section 131, the point where the traffic is transferred from the line of a railway company to a line to which this Part does not apply; (point de destination)

point of origin

point of origin means, with respect to traffic on a railway line that is subject to a transfer described in subsection 128(4) or section 131, the point where the traffic is transferred to the line of a railway company from a line to which this Part does not apply; (point d’origine)

public passenger service provider

public passenger service provider means VIA Rail Canada Inc., a passenger rail service provider designated by the Minister or an urban transit authority; (société de transport publique)

Quebec–Windsor corridor

Quebec–Windsor corridor means the area of Canada that is bounded

• (a) to the east by longitude 70.50° W,

• (b) to the north by a straight line connecting a first point located at latitude 47.45° N and longitude 70.50° W to a second point located at latitude 43.70° N and longitude 83.25° W,

• (c) to the west by longitude 83.25° W, and

• (d) to the south by the Canada-United States border; (axe Québec-Windsor)

railway

railway means a railway within the legislative authority of Parliament and includes

• (a) branches, extensions, sidings, railway bridges, tunnels, stations, depots, wharfs, rolling stock, equipment, stores, or other things connected with the railway, and

• (b) communications or signalling systems and related facilities and equipment used for railway purposes; (chemin de fer)

railway company

railway company means a person who holds a certificate of fitness under section 92, a partnership of such persons or a person who is mentioned in subsection 90(2); (compagnie de chemin de fer)

road

road means any way or course, whether public or not, available for vehicular or pedestrian use; (route)

Special Act

Special Act means an Act under which a railway company has authority to construct or operate a railway, or that is enacted with special reference to a railway, and includes

• (a) letters patent constituting a company’s authority to construct or operate a railway, granted before April 1, 1969, under any Act, and the Act under which the letters patent were granted or confirmed, and

• (b) letters patent incorporating a company under section 11 of the Railway Act on or after April 1, 1969, whose objects are the construction or operation of a railway in Canada; (loi spéciale)

tariff

tariff means a schedule of rates, charges, terms and conditions applicable to the movement of traffic and incidental services; (tarif)

traffic

traffic means the traffic of goods, including equipment required for their movement; (transport ou trafic)

urban transit authority

urban transit authority means an entity owned or controlled by the federal government or a provincial, municipal or district government that provides commuter services; (administration de transport de banlieue)

Vancouver–Kamloops corridor

Vancouver–Kamloops corridor means the area of Canada that is bounded

• (a) to the east by longitude 121.21° W,

• (b) to the north by latitude 50.83° N,

• (c) to the west by longitude 128.45° W, and

• (d) to the south by the Canada-United States border. (axe Vancouver-Kamloops)

Marginal note:Application

• 88 (1) This Part applies to all persons, railway companies and railways within the legislative authority of Parliament.

• Marginal note:Special cases

  (2) Without limiting the effect of subsection (1), this Part applies to

  • (a) a company operating a railway from the United States into Canada; and

  • (b) a railway, or a portion of a railway, whether or not constructed under the authority of an Act of Parliament, that is owned, controlled, leased or operated by a person who operates a railway within the legislative authority of Parliament.

• Marginal note:Works for the general advantage of Canada

  (3) A railway or a portion of a railway mentioned in paragraph (2)(b) is declared to be a work for the general advantage of Canada.

• Marginal note:Cessation of declaration

  (4) A declaration by subsection (3) or by any other Act of Parliament that a railway is a work for the general advantage of Canada, or for the advantage of two or more provinces, ceases to have effect with respect to a line of the railway, or a portion of it, whose operation is discontinued under Division V or is the subject of a transfer under that Division to a person other than a company mentioned in paragraph (2)(b).

Marginal note:Special Act railways declared to be works for general advantage of Canada

89 If the construction or operation of a railway is authorized by a Special Act passed by the legislature of a province and the railway is declared by an Act of Parliament to be a work for the general advantage of Canada, this Part applies to the railway to the exclusion of any general railway Act of the province and any provisions of the Special Act that are inconsistent with this Part.

DIVISION IIConstruction and Operation of Railways

Certificate of Fitness

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.

• Marginal note:Exception — purchaser of railway

  (2) Subsection (1) does not apply to a purchaser of a railway, or a portion of a railway, for a period of sixty days after the purchase if the railway or portion is purchased

  • (a) under a trust deed or mortgage;

  • (b) at the instance of the holders of a mortgage, bond or debenture for the payment of which a charge has been created on the railway or portion; or

  • (c) under any other lawful proceeding.

Marginal note:Application for certificate of fitness

• 91 (1) Any person may apply for a certificate of fitness for a railway, including a person who owns or leases the railway or controls, either directly or indirectly, a person who owns or leases the railway.

• Marginal note:Application for certain types of operations

  (2) If a person proposes to operate in Canada primarily on the railway of another railway company, the application must indicate the termini and route of every line of railway proposed to be operated.

Marginal note:Issuance of certificate of fitness

• 92 (1) The Agency shall issue a certificate of fitness

  • (a) for the proposed operation of a railway that relates to a passenger rail service or for the proposed construction of a railway, if the Agency is satisfied that there will be adequate liability insurance coverage for the proposed operation or construction, as determined in accordance with the regulations; or

  • (b) for the proposed operation of a railway that does not relate to a passenger rail service, if the Agency is satisfied that there will be, for the proposed operation, the applicable minimum liability insurance coverage, which includes any self-insurance, as set out in Schedule IV.

• Marginal note:Covered risks

  (1.1) The liability insurance referred to in paragraph (1)(b) must cover the following risks that may arise out of the proposed operation:

  • (a) third-party bodily injury or death, including injury or death to passengers;

  • (b) third-party property damage, excluding damage to goods carried on a shipper’s behalf;

  • (c) risks that are associated with a leak, pollution or contamination; and

  • (d) in the case of a railway accident as defined in section 152.5, the other losses, damages, costs and expenses described in subsection 153(1).

• Marginal note:Self-insurance

  (1.2) For the purpose of paragraph (1)(b), the amount of self-insurance must not exceed the maximum amount of self-insurance that the person who will be responsible for the proposed operation can sustain based on that person’s financial capability.

• Marginal note:Termini and route

  (2) A certificate of fitness issued pursuant to an application mentioned in subsection 91(2) must specify the termini and route of every railway line to be operated.

• Marginal note:Regulations made by Agency

  (3) The Agency may make regulations

  • (a) in respect of the proposed operation of a railway that relates to a passenger rail service or of a proposed construction of a railway, for determining the adequacy of liability insurance coverage, including any self-insurance; and

  • (b) in respect of the proposed operation of a railway that does not relate to a passenger rail service, respecting the provision of information that the Agency requires to determine whether there will be, for the proposed operation, the applicable minimum liability insurance coverage, which includes any self-insurance, as set out in Schedule IV.

• Marginal note:Regulations made by Governor in Council

  (4) The Governor in Council may, by regulation, amend Schedule IV by deleting or adding a class of railway operations and an amount of minimum liability insurance coverage or by amending such a class — including by adding or deleting factors that define its scope — or such an amount.

Marginal note:Variation of certificate

• 93 (1) The Agency may, on application, vary a certificate of fitness

  • (a) to change the termini or route of a line specified in the certificate;

  • (b) to add a line to the certificate; or

  • (c) to reflect a change in railway operations or circumstances relating to those operations.

• Marginal note:Variation when running rights granted

  (2) The Agency may vary a certificate of fitness when it

  • (a) makes an order under paragraph 116(4)(e) that requires a railway company to grant a right to the holder of the certificate; or

  • (b) grants a right under section 138 to the holder of the certificate.

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.

General Powers of Railway Companies

Marginal note:Powers

• 95 (1) Subject to the provisions of this Part and any other Act of Parliament, a railway company may exercise the following powers for the purpose of constructing or operating its railway:

  • (a) make or construct tunnels, embankments, aqueducts, bridges, roads, conduits, drains, piers, arches, cuttings and fences across or along a railway, watercourse, canal or road that adjoins or intersects the railway;

  • (b) divert or alter the course of a watercourse or road, or raise or lower it, in order to carry it more conveniently across or along the railway;

  • (c) make drains or conduits into, through or under land adjoining the railway for the purpose of conveying water from or to the railway;

  • (d) divert or alter the position of a water pipe, gas pipe, sewer or drain, or telegraph, telephone or electric line, wire or pole across or along the railway; and

  • (e) do anything else necessary for the construction or operation of the railway.

• Marginal note:Minimal damage

  (2) The railway company shall do as little damage as possible in the exercise of the powers.

• Marginal note:Restoration

  (3) If the railway company diverts or alters anything mentioned in paragraph (1)(b) or (d), the company shall restore it as nearly as possible to its former condition, or shall put it in a condition that does not substantially impair its usefulness.

• Marginal note:Compensation

  (4) The railway company shall pay compensation to a person who sustains actual loss or damage from the exercise of the powers and the compensation must equal the amount of the loss or damage that the company would be liable to pay the person if the powers had not been conferred by statute.

Noise and Vibration

Marginal note: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.

Marginal note: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.

• Marginal note:Consultations

  (2) The Agency must consult with interested parties, including municipal governments, before issuing any guidelines.

• Marginal note:Not statutory instruments

  (3) The guidelines are not statutory instruments within the meaning of the Statutory Instruments Act.

Marginal note: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.

• Marginal note: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.

Marginal note:Public passenger service providers

95.4 Sections 95.1 to 95.3 apply, with any modifications that are necessary, to public passenger service providers.

Land Transfer

Marginal note:Land taken pursuant to section 134 of Railway Act

• 96 (1) Where a railway company took possession of, used or occupied land under section 134 of the Railway Act before the coming into force of section 185, the railway company may not alienate the land except to transfer it to a railway company for the purpose of continuing railway operations or to the Crown.

• Marginal note:Alienation to other persons

  (2) The land may be transferred to any other person for the purpose of continuing railway operations if

  • (a) in the case of land in Quebec, the transfer involves only a lease or a dismemberment of the right of ownership; or

  • (b) in the case of land in any other province, the transfer does not involve a transfer of the fee simple in the land.

• Marginal note:Continuing application to subsequent transfers

  (3) If land is transferred under subsection (1) or (2) to any person other than the Crown in right of Canada, subsequent transfers of the land are subject to the same limitations as those contained in this section.

• Marginal note:Existing rights

  (4) A transfer of land under this section does not affect any right or interest of a person, other than a railway company, that existed in the land immediately before the coming into force of section 185.

Marginal note:Land obtained for railway purposes

• 97 (1) Subject to section 96, a railway company that obtained land from the Crown or any other person to assist in the construction or operation of its railway may acquire or transfer the land.

• Marginal note:Transfer of authority

  (2) If the railway company transfers the land to another company that has entered into a contract for the construction or operation, in whole or in part, of the railway for which the land was obtained, the other company has the same authority under this section as the railway company had in respect of the land.

Railway Lines

Marginal note:No construction without Agency approval

• 98 (1) A railway company shall not construct a railway line without the approval of the Agency.

• Marginal note:Grant of approval

  (2) The Agency may, on application by the railway company, grant the approval if it considers that the location of the railway line is reasonable, taking into consideration requirements for railway operations and services and the interests of the localities that will be affected by the line.

• Marginal note:Exception

  (3) No approval is needed for the construction of a railway line

  • (a) within the right of way of an existing railway line; or

  • (b) within 100 m of the centre line of an existing railway line for a distance of no more than 3 km.

Marginal note:Filing agreements

• 99 (1) An agreement, or an amendment to an agreement, relating to the construction of a railway line across another railway line may be filed with the Agency.

• Marginal note:Effect of filing

  (2) When the agreement or amendment is filed, it becomes an order of the Agency authorizing the parties to construct the railway line as provided in the agreement.

• Marginal note:No agreement

  (3) If a person is unsuccessful in negotiating an agreement or amendment mentioned in subsection (1), the Agency may, on application, authorize the construction of the railway line or any related work.

Road and Utility Crossings

Marginal note:Definitions

100 In this section and section 101,

road crossing

road crossing means the part of a road that passes across, over or under a railway line, and includes a structure supporting or protecting that part of the road or facilitating the crossing; (franchissement routier)

utility crossing

utility crossing means the part of a utility line that passes over or under a railway line, and includes a structure supporting or protecting that part of the utility line or facilitating the crossing; (franchissement par desserte)

utility line

utility line means a wire, cable, pipeline or other like means of enabling the transmission of goods or energy or the provision of services. (desserte)

Marginal note:Filing agreements

• 101 (1) An agreement, or an amendment to an agreement, relating to the construction, maintenance or apportionment of the costs of a road crossing or a utility crossing may be filed with the Agency.

• Marginal note:Effect of filing

  (2) When the agreement or amendment is filed, it becomes an order of the Agency authorizing the parties to construct or maintain the crossing, or apportioning the costs, as provided in the agreement.

• Marginal note:No agreement on construction or maintenance

  (3) If a person is unsuccessful in negotiating an agreement or amendment mentioned in subsection (1), the Agency may, on application, authorize the construction of a suitable road crossing, utility crossing or related work, or specifying who shall maintain the crossing.

• Marginal note:No agreement on apportionment of costs

  (4) Section 16 of the Railway Safety Act applies if a person is unsuccessful in negotiating an agreement relating to the apportionment of the costs of constructing or maintaining the road crossing or utility crossing.

• Marginal note:Non-application of section

  (5) This section does not apply in any circumstances where section 102 or 103 applies.

Private Crossings

Marginal note:Divided land

102 If an owner’s land is divided as a result of the construction of a railway line, the railway company shall, at the owner’s request, construct a suitable crossing for the owner’s enjoyment of the land.

Marginal note:Other crossings may be ordered

• 103 (1) If a railway company and an owner of land adjoining the company’s railway do not agree on the construction of a crossing across the railway, the Agency, on the application of the owner, may order the company to construct a suitable crossing if the Agency considers it necessary for the owner’s enjoyment of the land.

• Marginal note:Terms and conditions

  (2) The Agency may include in its order terms and conditions governing the construction and maintenance of the crossing.

• Marginal note:Costs of construction and maintenance

  (3) The owner of the land shall pay the costs of constructing and maintaining the crossing.

DIVISION IIIFinancial Transactions of Railway Companies

Security

Marginal note: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.

• Marginal note: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.

Documents Dealing with Rolling Stock

Marginal note: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) [Repealed, 2007, c. 19, s. 31]

• Marginal note:Effect of deposit

  (3) Once the deposit is made, the document need not be deposited, registered or filed under any other law or statute respecting real or personal property, and the document is valid against all persons.

• (4) [Repealed, 2007, c. 19, s. 31]

Regulations

Marginal note: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.

106 [Repealed, 2018, c. 10, s. 21]

107 [Repealed, 2018, c. 10, s. 21]

108 [Repealed, 2018, c. 10, s. 21]

109 [Repealed, 2018, c. 10, s. 21]

110 [Repealed, 2018, c. 10, s. 21]

DIVISION IVRates, Tariffs and Services

Interpretation

Marginal note:Definitions

111 In this Division,

competitive line rate

competitive line rate[Repealed, 2018, c. 10, s. 22]

confidential contract

confidential contract means a contract entered into under subsection 126(1); (contrat confidentiel)

connecting carrier

connecting carrier means a railway company, other than a local carrier, that moves traffic to or from an interchange over a portion of a continuous route; (transporteur de liaison)

interchange

interchange means a place where the line of one railway company connects with the line of another railway company and where loaded or empty cars may be stored until delivered or received by the other railway company; (lieu de correspondance)

interswitch

interswitch means to transfer traffic from the lines of one railway company to the lines of another railway company; (interconnexion)

interswitching rate

interswitching rate means a rate determined by the Agency in accordance with section 127.1; (Version anglaise seulement)

local carrier

local carrier means a class 1 rail carrier that moves traffic to or from an interchange on a continuous route from the point of origin or to the point of destination that is served exclusively by the class 1 rail carrier; (transporteur local)

long-haul interswitching rate

long-haul interswitching rate means a rate determined by the Agency in accordance with paragraph 134(1)(a); (Version anglaise seulement)

service obligations

service obligations means obligations under section 113 or 114. (Version anglaise seulement)

Rates and Conditions of Service

Marginal note:Commercially fair and reasonable

112 A rate or condition of service established by the Agency under this Division must be commercially fair and reasonable to all parties.

Level of Services

Marginal note:Accommodation for traffic

• 113 (1) A railway company shall, according to its powers, in respect of a railway owned or operated by it,

  • (a) furnish, at the point of origin, at the point of junction of the railway with another railway, and at all points of stopping established for that purpose, adequate and suitable accommodation for the receiving and loading of all traffic offered for carriage on the railway;

  • (b) furnish adequate and suitable accommodation for the carriage, unloading and delivering of the traffic;

  • (c) without delay, and with due care and diligence, receive, carry and deliver the traffic;

  • (d) furnish and use all proper appliances, accommodation and means necessary for receiving, loading, carrying, unloading and delivering the traffic; and

  • (e) furnish any other service incidental to transportation that is customary or usual in connection with the business of a railway company.

• Marginal note:Carriage on payment of rates

  (2) Traffic must be taken, carried to and from, and delivered at the points referred to in paragraph (1)(a) on the payment of the lawfully payable rate.

• 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.

• Marginal note:Compensation for provision of rolling stock

  (3) Where a shipper provides rolling stock for the carriage by the railway company of the shipper’s traffic, the company shall, at the request of the shipper, establish specific reasonable compensation to the shipper in a tariff for the provision of the rolling stock.

• Marginal note:Confidential contract between company and shipper

  (4) A shipper and a railway company may, by means of a confidential contract or other written agreement, agree on the manner in which the obligations under this section are to be fulfilled by the company.

Marginal note:Facilities for traffic

• 114 (1) A railway company shall, according to its powers, afford to all persons and other companies all adequate and suitable accommodation for receiving, carrying and delivering traffic on and from its railway, for the transfer of traffic between its railway and other railways and for the return of rolling stock.

• Marginal note:Through traffic

  (2) For the purposes of subsection (1), adequate and suitable accommodation includes reasonable facilities for the receiving, carriage and delivery by the company

  • (a) at the request of any other company, of through traffic and, in the case of goods shipped by carload, of the car with the goods shipped in it, to and from the railway of the other company, at a through rate; and

  • (b) at the request of any person interested in through traffic, of such traffic at through rates.

• Marginal note:Connecting railway to reasonable facilities

  (3) Every railway company that has or operates a railway forming part of a continuous line of railway with or that intersects any other railway, or that has any terminus, station or wharf near to any terminus, station or wharf of another railway, shall afford all reasonable facilities for delivering to that other railway, or for receiving from or carrying by its railway, all the traffic arriving by that other railway without any unreasonable delay, so that

  • (a) no obstruction is offered to the public desirous of using those railways as a continuous line of communication; and

  • (b) all reasonable accommodation, by means of the railways of those companies, is at all times afforded to the public for that purpose.

• Marginal note:Similar facilities for truckers

  (4) If a railway company provides facilities for the transportation by rail of motor vehicles or trailers operated by any company under its control for the conveyance of goods for hire or reward,

  • (a) the railway company shall offer to all companies operating motor vehicles or trailers for the conveyance of goods for hire or reward similar facilities at the same rates and on the same terms and conditions as those applicable to the motor vehicles or trailers operated by the company under its control; and

  • (b) the Agency may disallow any rate or tariff that is not in compliance with this subsection and direct the company to substitute a rate or tariff that complies with this subsection.

Marginal note:Adequate and suitable accommodation

115 For the purposes of subsection 113(1) or 114(1), adequate and suitable accommodation includes reasonable facilities

• (a) for the junction of private sidings or private spurs with a railway owned or operated by a company referred to in that subsection; and

• (b) for receiving, carrying and delivering traffic on and from private sidings or private spurs and placing cars and moving them on and from those private sidings or private spurs.

Marginal note:Complaint and investigation concerning company’s obligations

• 116 (1) On receipt of a complaint made by any person that a railway company is not fulfilling any of its service obligations, the Agency shall

  • (a) conduct, as expeditiously as possible, an investigation of the complaint that, in its opinion, is warranted; and

  • (b) within 90 days after receipt of the complaint, determine whether the company is fulfilling that obligation.

• Marginal note:Time limits

  (1.1) For the purpose of an investigation conducted under subsection (1), the Agency shall allow a company at least 20 days to file an answer and at least 10 days for a complainant to file a reply.

• Marginal note:Agency’s own motion

  (1.11) The Agency may, with the authorization of the Minister and subject to any terms and conditions that the Minister considers appropriate, of its own motion, conduct an investigation to determine whether a railway company is fulfilling its service obligations. The Agency shall conduct the investigation as expeditiously as possible and make its determination within 90 days after the investigation begins.

• Marginal note:Considerations

  (1.2) The Agency shall determine that a company is fulfilling its service obligations if it is satisfied that the company provides the highest level of service in respect of those obligations that it can reasonably provide in the circumstances, having regard to the following considerations:

  • (a) the traffic to which the service obligations relate;

  • (b) the reasonableness of the shipper’s requests with respect to the traffic;

  • (c) the service that the shipper requires with respect to the traffic;

  • (d) any undertaking with respect to the traffic given by the shipper to the company;

  • (e) the company’s and the shipper’s operational requirements and restrictions;

  • (f) the company’s obligations, if any, with respect to a public passenger service provider;

  • (g) the company’s obligations in respect of the operation of the railway under this Act;

  • (h) the company’s contingency plans to allow it to fulfil its service obligations when faced with foreseeable or cyclical events; and

  • (i) any information that the Agency considers relevant.

• Marginal note:Confidential contract binding on Agency

  (2) If a company and a shipper agree, by means of a confidential contract, on the manner in which service obligations under section 113 are to be fulfilled by the company, the terms of that agreement are binding on the Agency in making its determination.

• Marginal note:Long-haul interswitching order binding on Agency

  (3) If a long-haul interwitching order has been made under subsection 134(1), the terms established by the order that are related to the manner in which the local carrier is to fulfil its service obligations are binding on the Agency in making its determination.

• Marginal note:Orders of Agency

  (4) If the Agency determines that a company is not fulfilling any of its service obligations, the Agency may

  • (a) order that

    • (i) specific works be constructed or carried out,

    • (ii) property be acquired,

    • (iii) cars, motive power or other equipment be allotted, distributed, used or moved as specified by the Agency, or

    • (iv) any specified steps, systems or methods be taken or followed by the company;

  • (b) specify in the order the maximum charges that may be made by the company in respect of the matter so ordered;

  • (c) order the company to fulfil that obligation in any manner and within any time or during any period that the Agency deems expedient, having regard to all proper interests, and specify the particulars of the obligation to be fulfilled;

  • (c.1) order the company to compensate any person adversely affected for any expenses that they incurred as a result of the company’s failure to fulfil its service obligations or, if the company is a party to a confidential contract with a shipper that requires the company to pay an amount of compensation for expenses incurred by the shipper as a result of the company’s failure to fulfil its service obligations, order the company to pay that amount to the shipper;

  • (d) if the service obligation is in respect of a grain-dependent branch line listed in Schedule I, order the company to add to the plan it is required to prepare under subsection 141(1) an indication that it intends to take steps to discontinue operating the line; or

  • (e) if the service obligation is in respect of a grain-dependent branch line listed in Schedule I, order the company, on the terms and conditions that the Agency considers appropriate, to grant to another railway company the right

    • (i) to run and operate its trains over and on any portion of the line, and

    • (ii) in so far as necessary to provide service to the line, to run and operate its trains over and on any portion of any other portion of the railway of the company against which the order is made but not to solicit traffic on that railway, to take possession of, use or occupy any land belonging to that company and to use the whole or any portion of that company’s right-of-way, tracks, terminals, stations or station grounds.

• Marginal note:Right of action on default

  (5) Every person aggrieved by any neglect or refusal of a company to fulfil its service obligations has, subject to this Act, an action for the neglect or refusal against the company.

• Marginal note:Right of action not limited

  (5.1) If an arbitrator’s decision made under section 169.37 includes a term with respect to an amount described in paragraph 169.31(1)(c.1), the term does not limit the right to claim an amount of compensation in an action under subsection (5).

• Marginal note:Company not relieved

  (6) Subject to the terms of a confidential contract referred to in subsection 113(4) or a tariff that sets out, in accordance with subsection 136.4(1), terms established in a long-haul interswitching order, a company is not relieved from an action taken under subsection (5) by any notice, condition or declaration if the damage claimed in the action arises from any negligence or omission of the company or any of its employees.

Traffic of Grain

116.1 [Repealed, 2014, c. 8, s. 6]

116.2 [Repealed, 2014, c. 8, s. 6]

116.3 [Repealed, 2014, c. 8, s. 6]

Tariffs — General

Marginal note:Rates to be charged

• 117 (1) Subject to section 126, a railway company shall not charge a rate in respect of the movement of traffic or passengers unless the rate is set out in a tariff that has been issued and published in accordance with this Division and is in effect.

• Marginal note:Tariff to include prescribed information

  (2) The tariff must include any information that the Agency may prescribe by regulation.

• Marginal note:Accessibility of tariff

  (3) The railway company shall make the tariff accessible to the public by publishing it on its Internet site.

• (4) [Repealed, 2018, c. 10, s. 24]

• Marginal note:Record of tariff

  (5) The railway company shall keep a record of the tariff for at least three years after its cancellation.

Tariffs — Freight

Marginal note:Freight tariff requested by shipper

118 A railway company shall, at the request of a shipper, issue a tariff in respect of the movement of traffic on its railway.

Marginal note:Notice of change of tariff

• 119 (1) A railway company that proposes to increase a rate in a tariff for the movement of traffic shall publish a notice of the increase at least 30 days before its effective date.

• Marginal note:Effect of freight tariff

  (2) If a railway company issues and publishes a tariff of rates for the movement of traffic in accordance with this Division and Division VI,

  • (a) the rates are the lawful rates of the railway company and, subject to subsection (1), they take effect on the date stated in the tariff;

  • (b) the tariff supersedes any preceding tariff or any portion of it in so far as any rate in the tariff is varied; and

  • (c) a railway company that owns or operates a railway line in respect of which the tariff is issued shall charge the rates in the tariff until they expire or until the tariff is superseded by a new tariff.

Marginal note:Application to vessels

120 The provisions of this Division relating to tariffs, in so far as the Agency considers them applicable, apply to traffic carried by a railway company by water between ports or places in Canada if the company owns, charters, uses, maintains or operates vessels for carrying traffic by water between ports or places in Canada, or is a party to an arrangement for using, maintaining or operating vessels for that purpose.

Marginal note:Unreasonable charges or terms

• 120.1 (1) If, on complaint in writing to the Agency by a shipper who is subject to any charges and associated terms and conditions for the movement of traffic or for the provision of incidental services that are found in a tariff that applies to more than one shipper other than a tariff referred to in subsection 165(3), the Agency finds that the charges or associated terms and conditions are unreasonable, the Agency may, by order, establish new charges or associated terms and conditions.

• Marginal note:Period of validity

  (2) An order made under subsection (1) remains in effect for the period, not exceeding one year, specified in the order.

• Marginal note:Factors to be considered

  (3) In deciding whether any charges or associated terms and conditions are unreasonable, the Agency shall take into account the following factors:

  • (a) the objective of the charges or associated terms and conditions;

  • (b) the industry practice in setting the charges or associated terms and conditions;

  • (c) in the case of a complaint relating to the provision of any incidental service, the existence of an effective, adequate and competitive alternative to the provision of that service; and

  • (d) any other factor that the Agency considers relevant.

• Marginal note:Commercially fair and reasonable

  (4) Any charges or associated terms and conditions established by the Agency shall be commercially fair and reasonable to the shippers who are subject to them as well as to the railway company that issued the tariff containing them.

• Marginal note:Duty to vary tariff

  (5) The railway company shall, without delay after the Agency establishes any charges or associated terms and conditions, vary its tariff to reflect those charges or associated terms and conditions.

• Marginal note:No variation

  (6) The railway company shall not vary its tariff with respect to any charges or associated terms and conditions established by the Agency until the period referred to in subsection (2) has expired.

• Marginal note:Clarification

  (7) For greater certainty, this section does not apply to rates for the movement of traffic.

Joint Rates

Marginal note:Continuous route in Canada

• 121 (1) If traffic is to move over a continuous route in Canada and portions of it are operated by two or more railway companies, the companies shall, at the request of a shipper intending to move the traffic,

  • (a) agree on a joint tariff for the continuous route and on the apportionment of the rate in the joint tariff; or

  • (b) enter into a confidential contract for the continuous route.

• Marginal note:Agency may decide if no agreement

  (2) If the railway companies fail to agree or to enter into a confidential contract, the Agency, on the application of the shipper, may

  • (a) direct the companies, within any time that the Agency may specify, to agree on a joint tariff for the continuous route and an apportionment of the rate that is satisfactory to the Agency; or

  • (b) within ninety days after the application is received by the Agency,

    • (i) determine the route and the rate and apportion the rate among the companies, and

    • (ii) determine the dates, not earlier than the date of receipt by the Agency of the application, when the rate comes into effect and when it must be published.

• Marginal note:Refund to shipper

  (3) If the Agency determines a rate under paragraph (2)(b), the companies that operate the route shall pay a shipper who moved traffic over the route an amount equal to the difference, if any, between the rate that was paid by the shipper and the rate determined by the Agency, applicable to all movements of traffic by the shipper over the route from the date on which the application was made to the date on which the determined rate comes into effect.

Marginal note:Publication requirements for joint tariff or rate

• 122 (1) If a joint tariff or rate is agreed on or determined under section 121, the requirements of this Division for the publication of the tariff or rate apply only to the railway company operating the railway line on which the movement of the traffic originates.

• Marginal note:Publication of subsection 121(2) tariff or rate

  (2) A joint tariff or rate agreed on or determined under subsection 121(2) must be published without delay, or within any additional time that the Agency may specify.

Marginal note:Publication of joint tariff — from Canada to or through foreign country

123 If traffic is to move over a continuous route from a point in Canada through a foreign country into Canada, or from a point in Canada to a foreign country, and the continuous route is operated by two or more railway companies, the requirements of this Division for the publication of an applicable joint tariff apply only to the railway company operating the railway line on which the movement of the traffic originates.

Marginal note:Publication of joint tariff — from foreign country to or through Canada

124 If traffic is to move over a continuous route from a point in a foreign country into Canada, or from a foreign country through Canada into a foreign country, and the continuous route is operated by two or more companies, the requirements of this Division for the publication of an applicable joint tariff apply only to the railway company operating the railway line on which the traffic is first moved in Canada.

Marginal note:Continuous carriage not to be prevented

• 125 (1) No railway company shall, by any combination, contract or agreement, express or implied, or by any other means, prevent traffic from being moved on a continuous route from the point of origin to the point of destination.

• Marginal note:Break in bulk, etc.

  (2) A break in bulk, stop or interruption made by a railway company does not prevent the movement of traffic from being treated, for the purposes of sections 121 to 124, as one continuous movement from the point of origin to the point of destination, if the break, stop or interruption was made in good faith for a necessary purpose and without intent to avoid or unnecessarily interrupt the continuous movement or to evade the provisions of this Division.

• Marginal note:Agency may require information

  (3) The Agency may direct a railway company operating on a continuous route to inform the Agency of the proportion of the rates that the railway company, or any other company operating on the continuous route, is to receive or has received under a joint tariff or confidential contract applicable to the route.

Confidential Contracts

Marginal note:Confidential contracts

• 126 (1) A railway company may enter into a contract with a shipper that the parties agree to keep confidential respecting

  • (a) the rates to be charged by the company to the shipper;

  • (b) reductions or allowances pertaining to rates in tariffs that have been issued and published in accordance with this Division;

  • (c) rebates or allowances pertaining to rates in tariffs or confidential contracts that have previously been lawfully charged;

  • (d) the manner in which the company is to fulfil its service obligations under section 113; and

  • (e) any conditions relating to the traffic to be moved by the company, including any amount to be paid by the company or the shipper in relation to a failure to comply with any condition related to the service obligations referred to in paragraph (d).

• Marginal note:Request for confidential contract

  (1.1) A shipper may request that a railway company make it an offer to enter into a contract under subsection (1) with the railway company respecting

  • (a) the manner in which the company is to fulfil its service obligations under section 113; or

  • (b) any amount to be paid in relation to the company’s or the shipper’s failure to comply with a term related to those service obligations, the purpose of which is to encourage the efficient movement of the shipper’s traffic and the performance of the railway system.

• Marginal note:Restriction

  (1.11) The shipper may only make a request in respect of an amount described in paragraph (1.1)(b) if the amount relates to a term that is included in the request under subsection (1.1).

• Marginal note:Content of request

  (1.2) The request must describe the traffic to which it relates, the services requested by the shipper with respect to the traffic and any undertaking that the shipper is prepared to give to the railway company with respect to the traffic or services.

• Marginal note:Offer

  (1.3) The railway company must make its offer within 30 days after the day on which it receives the request.

• Marginal note:Exception to offer

  (1.4) Subject to subsection (1.5), the railway company is not required to include in its offer terms with respect to a matter that

  • (a) is governed by a written agreement to which the shipper and the railway company are parties;

  • (b) is the subject of an order, other than an interim order, made under subsection 116(4);

  • (c) is set out in a tariff referred to in subsection 136.4(1) or 165(3); or

  • (d) is the subject of an arbitration decision made under section 169.37.

• Marginal note:Clarification

  (1.5) The railway company must include in its offer terms with respect to a matter that is governed by an agreement, the subject of an order or decision or set out in a tariff, referred to in subsection (1.4) if the agreement, order, decision or tariff expires within two months after the day on which the railway company receives the request referred to in subsection (1.1). The terms must apply to a period that begins after the agreement, order, decision or tariff expires.

• Marginal note:No investigation or arbitration of confidential contracts

  (2) No party to a confidential contract is entitled to submit a matter governed by the contract to the Agency for final offer arbitration under section 161, without the consent of all the parties to the contract.

Interswitching

Marginal note:Application to interswitch traffic between connecting lines

• 127 (1) If a railway line of one railway company connects with a railway line of another railway company, an application for an interswitching order may be made to the Agency by either company, by a municipal government or by any other interested person.

• Marginal note:Order

  (2) If the point of origin or destination of a continuous movement of traffic is within a radius of 30 km of an interchange, the Agency may order

  • (a) one of the companies to interswitch the traffic; and

  • (b) the railway companies to provide reasonable facilities for the convenient interswitching of traffic in both directions at an interchange between the lines of either railway and those of other railway companies connecting with them.

• Marginal note:Order — Prairies

  (2.1) If the point of origin or destination of a continuous movement of traffic is in whole or in part in Manitoba, Saskatchewan or Alberta and is located within a radius of 160 km of an interchange that is in whole or in part in Manitoba, Saskatchewan or Alberta but outside a radius of 30 km of the interchange, the Agency may order

  • (a) one of the companies to interswitch the traffic; and

  • (b) the railway companies to provide reasonable facilities for the convenient interswitching of traffic in both directions at an interchange between the lines of either railway and those of other railway companies connecting with them.

• Marginal note:Interswitching limits

  (3) If the point of origin or destination of a continuous movement of traffic is within a radius of 30 km of an interchange, a railway company shall not transfer the traffic at the interchange except in accordance with the regulations and the interswitching rate.

• Marginal note:Extension of interswitching limits

  (4) On the application of a person referred to in subsection (1), the Agency may deem a point of origin or destination of a movement of traffic in any particular case to be within 30 km of an interchange if the Agency is of the opinion that, in the circumstances, the point of origin or destination is reasonably close to the interchange.

• Marginal note:Interswitching limits — Prairies

  (5) If the point of origin or destination of a continuous movement of traffic is in whole or in part in Manitoba, Saskatchewan or Alberta and is located within a radius of 160 km of an interchange that is in whole or in part in Manitoba, Saskatchewan or Alberta but outside a radius of 30 km of the interchange, a railway company must not transfer the traffic at the interchange except in accordance with the regulations and the interswitching rate.

• Marginal note:Information — traffic

  (6) When providing the Minister with information under regulations made under paragraph 50(1.01)(a), the Canadian National Railway Company and the Canadian Pacific Railway Company are also required to provide the Minister, in the same form and manner, with the following information with respect to any traffic that is moved by a railway car in order to permit the Minister to assess the effects of the application of subsections (2.1) and (5):

  • (a) an indication as to whether the point of origin or destination of the movement of the railway car was located within a radius of 30 km of an interchange that is in whole or in part in Manitoba, Saskatchewan or Alberta;

  • (b) an indication as to whether the point of origin or destination of the movement of the railway car was within a radius of 160 km of an interchange that is in whole or in part in Manitoba, Saskatchewan or Alberta but outside a radius of 30 km of the interchange;

  • (c) an indication as to whether the railway car was moved by the railway company at the interswitching rate; and

  • (d) if possible, an indication as to whether the railway car was moved by another railway company at the interswitching rate.

• Marginal note:Additional information

  (7) On request, a railway company must provide to the Minister, in the form and manner specified by the Minister, any of the information or documents that have been provided to the Agency under section 128.1 in order to permit the Minister to assess the effects of the application of subsections (2.1) and (5).

Marginal note:Interswitching rate

• 127.1 (1) The Agency shall, no later than December 1 of every year, determine the rate per car to be charged for interswitching traffic for the following calendar year.

• Marginal note:Interswitching rate — Prairies

  (1.1) The Agency shall, no later than 90 days after the day on which this subsection comes into force, determine the rate per car to be charged for interswitching traffic within a zone that includes a point of origin or destination of a continuous movement of traffic that is located in whole or in part in Manitoba, Saskatchewan or Alberta and is within a radius of 160 km of an interchange that is in whole or in part in Manitoba, Saskatchewan or Alberta but outside a radius of 30 km of the interchange, for the calendar year in which this subsection comes into force.

• Marginal note:Considerations

  (2) In determining an interswitching rate, the Agency shall take into consideration

  • (a) any reduction in costs that, in the opinion of the Agency, results from moving a greater number of cars or from transferring several cars at the same time; and

  • (b) any long-term investment needed in the railways.

• Marginal note:Limit on rate

  (3) In determining an interswitching rate, the Agency shall consider the average variable costs of all movements of traffic that are subject to the rate and the rate shall not be less than the variable costs of moving the traffic, as determined by the Agency.

• Marginal note:Publication of method

  (4) The Agency shall, when it makes its determination under subsection (1), publish the method that it followed for determining the rate.

• Marginal note:Publication of method — subsection (1.1)

  (4.1) The Agency shall, when it makes its determination under subsection (1.1), publish the method that it followed for determining the rate.

• Marginal note:Interswitching rate to be published

  (5) The Agency shall cause the interswitching rate to be published in the Canada Gazette no later than December 31 before the beginning of the calendar year for which the rate applies.

• Marginal note:Publication — subsection (1.1)

  (6) The Agency shall, no later than 90 days after the day on which this subsection comes into force, publish the rate determined under subsection (1.1) on its Internet site.

Marginal note:Repeal

127.2 This section and subsections 127(2.1) and (5) to (7) and 127.1(1.1), (4.1) and (6) are repealed on the day that, in the 18th month after the month in which subsection 127(2.1) comes into force, has the same calendar number as the day on which that subsection 127(2.1) comes into force or, if that 18th month has no day with that number, the last day of that 18th month.

Marginal note:Regulations

• 128 (1) The Agency may make regulations

  • (a) prescribing terms and conditions governing the interswitching of traffic, other than terms and conditions relating to safety; and

  • (b) establishing distance zones for the purpose of determining the interswitching rate.

  • (c) [Repealed, 2018, c. 10, s. 28]

• (1.1) [Repealed, 2014, c. 8, s. 7]

• (2) and (3) [Repealed, 2018, c. 10, s. 28]

• Marginal note:Transfer of lines does not affect entitlement

  (4) For greater certainty, the transfer of a railway line, or an operating interest in it, under Division V or section 158 of the National Transportation Act, 1987 does not affect any entitlement to an interswitching rate.

• Marginal note:Review of interswitching regulations

  (5) The Agency shall review the regulations when the circumstances warrant and at least once in every five year period after the regulations are made.

Marginal note:Power to require information

128.1 No later than August 31 of every year, a railway company shall provide to the Agency, in the form and manner specified by the Agency, the information or documents that the Agency considers necessary to exercise its powers or perform its duties or functions under section 127.1.

Long-haul Interswitching

Marginal note:Long-haul interswitching order

• 129 (1) A shipper may apply to the Agency for a long-haul interswitching order against a railway company that is a class 1 rail carrier if

  • (a) the shipper has access to the lines of only that railway company at the point of origin or destination of the movement of the shipper’s traffic in the reasonable direction of the traffic and its destination;

  • (b) a continuous route between those points is operated by two or more railway companies;

  • (c) the shipper is dissatisfied with a rate charged or proposed to be charged by the railway company referred to in paragraph (a) or with the proposed manner in which that railway company is to fulfil its service obligations for the movement of the shipper’s traffic between the point of origin or destination that is served exclusively by that railway company and the nearest interchange in Canada with a connecting carrier; and

  • (d) the matter described in paragraph (c) cannot be resolved between the shipper and the railway company.

• Marginal note:Restriction

  (2) If, at both the point of origin and the point of destination of the movement of the shipper’s traffic, a shipper has access to the lines of only one railway company that is a class 1 rail carrier, the shipper is entitled to apply for only one long-haul interswitching order, which is to be in respect of either the movement of the traffic from the point of origin to the nearest interchange in Canada or the movement of the traffic from the nearest interchange in Canada to the point of destination.

• Marginal note:No entitlement

  (3) A shipper is not entitled to apply to the Agency for a long-haul interswitching order

  • (a) if the point of origin or destination that is served exclusively by the local carrier is within a radius of 30 km of an interchange in Canada that is in the reasonable direction of the shipper’s traffic and its destination;

  • (b) if the point of origin or destination that is served exclusively by the local carrier or the nearest interchange is located within the Quebec–Windsor corridor or the Vancouver–Kamloops corridor;

  • (c) if the point of origin or destination that is served exclusively by the local carrier is located on a track that

    • (i) serves a reload or distribution compound, a container terminal or any other facility operated by the local carrier or for the local carrier’s own purposes, or

    • (ii) is used by the local carrier for the transfer of traffic between cars or between a car and a warehouse owned by the local carrier;

  • (d) for the movement of vehicles, as defined in section 2 of the Motor Vehicle Safety Act, or of parts of those vehicles;

  • (e) for the movement of TIH (Toxic Inhalation Hazard) material;

  • (f) for the movement of radioactive material;

  • (g) for the movement of oversized traffic on flat cars, if the dimensions of the traffic require exceptional measures be taken;

  • (h) for the movement, on flat cars, of containers or trailers;

  • (i) if the traffic to be moved is already the subject of a long-haul interswitching order;

  • (j) if an order or consent agreement made under Part VIII of the Competition Act, which followed an application made by the Commissioner of Competition, addresses the rate for the traffic to be moved; or

  • (k) in any other case specified in the regulations.

• Marginal note:Deeming — interchange

  (4) For the purpose of paragraph (3)(b), an interchange located in the metropolitan area of Montreal is deemed to be the nearest interchange and to be located outside the Quebec–Windsor corridor if

  • (a) the point of origin of the movement of the shipper’s traffic is located in Quebec and north of the Quebec-Windsor corridor;

  • (b) the shipper has access to the lines of only one class 1 rail carrier at the point of origin; and

  • (c) the nearest interchange is located in the Quebec–Windsor corridor.

Marginal note:Conditions

• 130 (1) Subsection (2) applies if

  • (a) a shipper has access to the lines of only one railway company at the point of origin or destination of the movement of the shipper’s traffic;

  • (b) the railway company referred to in paragraph (a) is not a class 1 rail carrier; and

  • (c) there is a junction between the lines of the railway company referred to in paragraph (a) and the lines of a railway that is operated by a class 1 rail carrier and the shipper has access to only those railway lines at that junction.

• Marginal note:Deeming

  (2) For the purposes of sections 129 and 131 to 136.6,

  • (a) the junction referred to in paragraph (1)(c) is deemed to be the point of origin or the point of destination, as the case may be;

  • (b) the junction referred to in paragraph (1)(c) is deemed to be served exclusively by the class 1 rail carrier referred to in that paragraph; and

  • (c) the class 1 rail carrier referred to in paragraph (1)(c) is deemed to be the local carrier.

Marginal note:Transferred railway lines

131 For greater certainty, the transfer of a railway line, or an operating interest in it, under Division V or section 158 of the National Transportation Act, 1987 does not affect the right of a shipper to apply for a long-haul interswitching order.

Marginal note:Contents of application

132 The shipper shall, in its application for a long-haul interswitching order,

• (a) provide an undertaking to the local carrier to move the traffic by rail with the local carrier between the point of origin or destination that is served exclusively by the local carrier and the nearest interchange in Canada with a connecting carrier in accordance with the long-haul interswitching order; and

• (b) indicate the continuous route that the shipper has chosen for the movement of the shipper’s traffic.

Marginal note:Dismissal of application

133 The Agency shall dismiss the application for a long-haul interswitching order if the shipper does not demonstrate, to the Agency’s satisfaction, that an attempt has been made to resolve the matters referred to in the application.

Marginal note:Determination by Agency

• 134 (1) Within 30 business days after receiving the application for a long-haul interswitching order, the Agency shall, by order, determine any of the following matters in respect of which the shipper and the local carrier do not agree:

  • (a) the long-haul interswitching rate that applies in respect of the movement of the shipper’s traffic between the point of origin or destination that is served exclusively by the class 1 rail carrier and the nearest interchange in Canada with a connecting carrier;

  • (b) the continuous route from the point of origin to the point of destination;

  • (c) the nearest interchange in Canada; and

  • (d) the manner in which the local carrier is to fulfil its service obligations in respect of the movement of traffic described in paragraph (a).

• Marginal note:Maximum portion of traffic

  (2) The Agency shall not make a long-haul interswitching order if the movement of the shipper’s traffic between the point of origin or destination that is served exclusively by the class 1 rail carrier and the nearest interchange in Canada exceeds the greater of

  • (a) 1 200 km; and

  • (b) 50% of the total number of kilometres over which the traffic is moved by rail in Canada.

Marginal note:Long-haul interswitching rate

• 135 (1) The following rules apply to the determination of the long-haul interswitching rate:

  • (a) for the first 30 km, the rate is to be the interswitching rate; and

  • (b) for the remainder of the distance, the Agency shall determine the rate by having regard to the revenue per tonne kilometre for the movement by the local carrier of comparable traffic in respect of which no long-haul interswitching rate applies.

• Marginal note:Minimum rate

  (2) The Agency shall not determine the rate described in paragraph (1)(b) to be less than the average of the revenue per tonne kilometre for the movement by the local carrier of comparable traffic in respect of which no long-haul interswitching rate applies.

• Marginal note:Factors to consider — comparable traffic

  (3) For the purpose of paragraph (1)(b), the Agency shall determine what constitutes comparable traffic by having regard to

  • (a) the type of traffic;

  • (b) the distance over which the traffic is moved;

  • (c) the conditions of the movement of the traffic, including whether it is moved as single cars, blocks of cars or unit trains;

  • (d) the type and ownership of the cars used to move the traffic;

  • (e) the handling requirements for the traffic;

  • (f) the volume and frequency of the traffic;

  • (g) any undertaking given by the shipper in respect of the volume of the traffic;

  • (h) any incentives, rebates or any similar reductions in respect of the traffic; and

  • (i) any other factor related to the requirements of the shipper and the local carrier that the Agency considers appropriate.

• Marginal note:Factors to consider — rate

  (4) The Agency shall determine the rate described in paragraph (1)(b) by having regard to the factors described in subsection (3), the density of traffic on the lines of the local carrier on which the traffic is to be moved and any long-term investment needed in those lines.

Marginal note:Continuous route

• 136 (1) The Agency shall, in determining the continuous route from the point of origin to the point of destination, have regard to the continuous route that has been chosen by the shipper for the movement of its traffic in its application.

• Marginal note:Route in Canada

  (2) If the point of destination of the continuous route of a movement of the shipper’s traffic is in Canada, the Agency shall determine a continuous route that is wholly within Canada, unless there is no cost-effective continuous route wholly within Canada that is available to the shipper and over which it is reasonable to move the shipper’s traffic.

• Marginal note:Export and import

  (3) For the purposes of subsections (1) and (2),

  • (a) if the traffic is to be moved through a port in Canada for import into Canada, that port is the point of origin; and

  • (b) if the traffic is to be moved through a port in Canada for export out of Canada, that port is the point of destination.

Marginal note:Nearest interchange

136.1 The Agency shall determine the nearest interchange in Canada to be the one nearest to the point of origin or destination, whichever is served exclusively by the local carrier, in the reasonable direction of the movement of the traffic from the point of origin to the point of destination on the continuous route, unless the local carrier can demonstrate that the interchange cannot be used for engineering reasons.

Marginal note:Service obligations

136.2 The Agency shall determine the manner in which the local carrier is to fulfil its service obligations by having regard to the considerations set out in paragraphs 116(1.2)(a) to (i).

Marginal note:Duration of order

136.3 The long-haul interswitching order applies to the parties for a period of one year as of the date of the order, unless the parties agree otherwise.

Marginal note:Incorporation in tariff

• 136.4 (1) The local carrier shall, without delay after the long-haul interswitching order is made, set out in a tariff the terms established by the order, unless the shipper and local carrier agree to include those terms in a confidential contract.

• Marginal note:Publication not required

  (2) Subsection 117(3) does not apply in respect of the tariff.

Marginal note:No final offer arbitration

136.5 If a long-haul interswitching order is made by the Agency, the shipper is not entitled to submit any matter related to the movement of the traffic that is the subject of the order to the Agency for final offer arbitration under section 161.

Marginal note:Obligation of carriers to provide cars

• 136.6 (1) Subject to any agreement to the contrary, if a long-haul interswitching order is made, the connecting carrier is responsible for providing the shipper with an adequate supply of cars for the traffic being moved, in addition to its other service obligations in relation to the movement of the traffic.

• Marginal note:Additional obligations

  (2) Subject to any agreement to the contrary, the connecting carrier is, in respect of the interchange referred to in paragraph 129(1)(c), responsible for

  • (a) a prorated share, determined in accordance with subsection (3), of the costs of operating and maintaining the interchange during the period in which the long-haul interswitching order applies; and

  • (b) the capital cost of making any change to the interchange that may be necessary for transferring the traffic that is the subject of the long-haul interswitching order.

• Marginal note:Determination of prorated share

  (3) The prorated share is the proportion that the traffic that is the subject of the order transferred at the interchange and moved by the connecting carrier during the period in which the order applies is of the total traffic transferred at the interchange during that period.

• Marginal note:Share of capital cost

  (4) If more than one connecting carrier moves the traffic that is the subject of the order, the capital cost is to be shared between the connecting carriers based on each connecting carrier’s share of the amount of traffic moved.

Marginal note:Regulations

136.7 The Governor in Council may, for the purpose of paragraph 129(3)(k), make regulations specifying cases in which a shipper is not entitled to apply for a long-haul interswitching order.

Marginal note:Suspension of operation

136.8 If the Governor in Council is of the opinion that the financial viability of a railway company is seriously affected by the operation of sections 129 to 136.7, the Governor in Council may, by order, suspend the operation of those sections during the period specified in the order.

Interchanges

Marginal note:List

• 136.9 (1) A railway company shall prepare and keep up to date a list of the locations of the interchanges on the railway that the company operates. It shall publish the list on its Internet site or the Internet site of an association or other entity representing railway companies.

• Marginal note:Notice

  (2) A railway company may remove an interchange from its list only after the expiry of 120 days after it

  • (a) has published a notice of its intention to do so on its Internet site or the Internet site of an association or other entity representing railway companies; and

  • (b) has sent a copy of the notice to the Agency.

• Marginal note:Service obligations

  (3) For greater certainty, the removal of an interchange under subsection (2) does not relieve a railway company from its service obligations.

Means to Deal with Carriers’ Liability

Marginal note:Agreement

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

Marginal note:Complaints

137.1 If, after receiving a complaint, the Agency finds that a railway company is not complying with subsection 137(1), the Agency may order it to take any measures that the Agency considers appropriate to comply with that subsection.

Running Rights and Joint Track Usage

Marginal note:Application by railway company

• 138 (1) A railway company may apply to the Agency for the right to

  • (a) take possession of, use or occupy any land belonging to any other railway company;

  • (b) use the whole or any portion of the right-of-way, tracks, terminals, stations or station grounds of any other railway company; and

  • (c) run and operate its trains over and on any portion of the railway of any other railway company.

• Marginal note:Application may be granted

  (2) The Agency may grant the right and may make any order and impose any conditions on either railway company respecting the exercise or restriction of the rights as appear just or desirable to the Agency, having regard to the public interest.

• Marginal note:Compensation

  (3) The railway company shall pay compensation to the other railway company for the right granted and, if they do not agree on the compensation, the Agency may, by order, fix the amount to be paid.

Marginal note:Request for joint or common use of right-of-way

• 139 (1) The Governor in Council may

  • (a) on the application of a railway company, a municipal government or any other interested person, or on the Governor in Council’s own initiative, and

  • (b) after any investigation that the Governor in Council considers necessary,

  request two or more railway companies to consider the joint or common use of a right-of-way if the Governor in Council is of the opinion that its joint or common use may improve the efficiency and effectiveness of rail transport and would not unduly impair the commercial interests of the companies.

• Marginal note:Order in Council for joint or common use of right-of-way

  (2) If the Governor in Council is satisfied that significant efficiencies and cost savings would result from joint or common use of the right-of-way by two or more railway companies and would not unduly impair the commercial interests of the companies, the Governor in Council may make any order for the joint or common use of the right-of-way that the Governor in Council considers necessary.

• Marginal note:Compensation

  (3) The Governor in Council may also, by order, fix the amount of compensation to be paid in respect of the joint or common use of the right-of-way and any related work if the companies do not agree on the amount of that compensation.

DIVISION VTransferring and Discontinuing the Operation of Railway Lines

Definition of railway line

• 140 (1) In this Division, railway line includes a portion of a railway line, but does not include

  • (a) a yard track, siding or spur; or

  • (b) other track auxiliary to a railway line.

• Marginal note:Determination

  (2) The Agency may determine as a question of fact what constitutes a yard track, siding, spur or other track auxiliary to a railway line.

Marginal note:Three-year plan

• 141 (1) A railway company shall prepare and keep up to date a plan indicating for each of its railway lines whether it intends to continue to operate the line or whether, within the next three years, it intends to take steps to discontinue operating the line.

• Marginal note:Public accessibility of plan

  (2) The railway company shall make the plan accessible to the public by publishing it on its Internet site or the Internet site of an association or other entity representing railway companies.

• Marginal note: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.

• Marginal note:Information to provide to Minister

  (2.2) The railway company shall, within 60 days after indicating in the plan its intention to discontinue operating a railway line, provide to the Minister

  • (a) an assessment of whether or not section 96 applies to the land on which the railway line is located; and

  • (b) a legal description of any land to which the assessment indicates section 96 applies and, in the form specified by the Minister, geographical information that would allow for mapping of the land.

• Marginal note:Discontinuance already indicated in plan

  (2.3) If a railway company has, on the day on which subsection (2.2) comes into force, a plan indicating its intention to discontinue operating a railway line, but the company has not yet made an advertisement under section 143 in respect of that line, it shall provide to the Minister the information referred to in that subsection before making the advertisement.

• Marginal note: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.

• Marginal note:Declaration

  (3.1) The railway company shall provide a written declaration to the person to whom the railway line or the operating interest is being sold, leased or otherwise transferred, stating that the sale, lease or transfer is in compliance with section 96. It shall also send a copy of the declaration to the Minister.

• Marginal note:Continued operation of a portion of a line

  (4) A railway company that sells, leases or otherwise transfers a portion of a grain-dependent branch line listed in Schedule I, or its operating interest in such a portion, to a person who intends to operate the portion shall continue to operate the remaining portion for three years, unless the Minister determines that it is not in the public interest for the company to do so.

Marginal note:Compliance with steps for discontinuance

• 142 (1) A railway company shall comply with the steps described in this Division before discontinuing operating a railway line. The railway company shall publish and keep up to date on its Internet site or the Internet site of an association or other entity representing railway companies a report that sets out the date that it commenced and completed each step.

• Marginal note:Limitation

  (2) A railway company shall not take steps to discontinue operating a railway line before the company’s intention to discontinue operating the line has been indicated in its plan for at least 12 months.

• Marginal note:Exception

  (2.1) Subsection (2) does not apply to a railway company that is the subject of proceedings under the Companies’ Creditors Arrangement Act or the Bankruptcy and Insolvency Act.

• Marginal note:Community-based groups

  (3) Subsection (2) does not apply and a railway company shall without delay take the steps described in section 143 if

  • (a) the federal government, a provincial, municipal or district government or a community-based group endorsed in writing by such a government has written to the company to express an interest in acquiring all or a portion of a grain-dependent branch line that is listed in Schedule I for the purpose of continuing to operate that line or portion of a line; and

  • (b) that line or portion of a line is indicated on the company’s plan as being a line or a portion of a line that the company intends to take steps to discontinue operating.

Marginal note:Advertisement of availability of railway line for continued rail operations

• 143 (1) The railway company shall advertise the availability of the railway line, or any operating interest that the company has in it, for sale, lease or other transfer for continued operation and its intention to discontinue operating the line if it is not transferred.

• Marginal note:Content of advertisement

  (2) The advertisement must include a description of the railway line and how it or the operating interest is to be transferred, whether by sale, lease or otherwise, and an outline of the steps that must be taken before the operation of the line may be discontinued, including

  • (a) a statement that the advertisement is directed to persons interested in buying, leasing or otherwise acquiring the railway line, or the railway company’s operating interest in it, for the purpose of continuing railway operations; and

  • (b) the date by which interested persons must make their interest known in writing to the company, but that date must be at least sixty days after the first publication of the advertisement.

• Marginal note:Disclosure — advertisement

  (3) The advertisement shall also disclose

  • (a) 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; and

  • (b) an indication as to whether or not section 96 applies to the land on which that railway line is located.

• (4) [Repealed, 2007, c. 19, s. 36]

Marginal note:Disclosure of process

• 144 (1) The railway company shall disclose the process it intends to follow for receiving and evaluating offers to each interested person who makes their interest known in accordance with the advertisement.

• (2) [Repealed, 2007, c. 19, s. 37]

• Marginal note:Negotiation in good faith

  (3) The railway company shall negotiate with an interested person in good faith and in accordance with the process it discloses and the interested person shall negotiate with the company in good faith.

• Marginal note:Net salvage value

  (3.1) The Agency may, on application by a party to a negotiation, determine the net salvage value of the railway line and may, if it is of the opinion that the railway company has removed any of the infrastructure associated with the line in order to reduce traffic on the line, deduct from the net salvage value the amount that the Agency determines is the cost of replacing the removed infrastructure. The party who made the application shall reimburse the Agency its costs associated with the application.

• Marginal note:Time limit for agreement

  (4) The railway company has six months to reach an agreement after the final date stated in the advertisement for persons to make their interest known.

• Marginal note:Decision to continue operating a railway line

  (5) If an agreement is not reached within the six months, the railway company may decide to continue operating the railway line, in which case it is not required to comply with section 145, but shall amend its plan to reflect its decision.

• Marginal note:Declaration

  (5.1) If an agreement is reached, including an agreement entered into to in accordance with an order by the Agency, the railway company shall provide a written declaration to the person to whom the railway line or the operating interest is being sold, leased or otherwise transferred, stating that the sale, lease or transfer is in compliance with section 96. It shall also send a copy of the declaration to the Minister.

• Marginal note:Remedy if bad faith by a railway company

  (6) If, on complaint in writing by the interested person, the Agency finds that the railway company is not negotiating in good faith and the Agency considers that a sale, lease or other transfer of the railway line, or the company’s operating interest in the line, to the interested person for continued operation would be commercially fair and reasonable to the parties, the Agency may order the railway company to enter into an agreement with the interested person to effect the transfer and with respect to operating arrangements for the interchange of traffic, subject to the terms and conditions, including consideration, specified by the Agency.

• Marginal note:Remedy if bad faith by an interested person

  (7) If, on complaint in writing by the railway company, the Agency finds that the interested person is not negotiating in good faith, the Agency may order that the railway company is no longer required to negotiate with the person.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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

  • (a) no person makes their interest known to the railway company, or no agreement with an interested person is reached, within the required time; or

  • (b) an agreement is reached within the required time, but the transfer is not completed in accordance with the agreement.

• Marginal note:Disclosure — offer

  (1.1) The offer shall disclose whether or not section 96 applies to the land on which that railway line is located, and if the information described in paragraphs 141(2.2)(a) and (b) has not yet been provided to the Minister, the railway company shall provide it to the Minister with the offer.

• Marginal note: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.

• Marginal note:Time limits for acceptance

  (3) Subject to subsection 146.3(3), after the offer is received

  • (a) by the Minister, the Government of Canada may accept it within 60 days or, if the Minister has extended the period under subsection (3.1), within that period;

  • (b) by a provincial minister, the government of the province may accept it within thirty days, unless the offer is received by the Minister, in which case the government of each province may accept it within an additional thirty days after the end of the period mentioned in paragraph (a) if it is not accepted under that paragraph;

  • (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.

• Marginal note:Extension

  (3.1) If the Minister considers it appropriate to do so, the Minister may extend the period referred to in paragraph (3)(a) by 120 days. The Minister may further extend the period, but the total of those further extensions may not exceed 365 days. Each time the Minister extends the period, the Minister shall provide a notice to the railway company and the railway company shall notify the other governments and urban transit authorities.

• Marginal note:Service obligations

  (3.2) If the Minister extends the period referred to in paragraph (3)(a), the railway company has no service obligations in respect of the operation of the railway line commencing on the expiry of 150 days after the offer was received by the Minister and ending on the expiry of 280 days after the expiry of the extended period referred to in that paragraph. The railway company shall not remove any of the infrastructure associated with the line during the period for which it has no service obligations.

• Marginal note: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.

• Marginal note:Declaration

  (4.1) The railway company shall, at the time of a transfer to a government or an urban transit authority, provide a written declaration to the government or urban transit authority stating that the transfer is in compliance with section 96. It shall also send a copy of the declaration to the Minister.

• Marginal note: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.

Marginal note: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.

• Marginal note:Documents to accompany notice of discontinuance

  (1.1) The notice of discontinuance shall be accompanied by a copy of the advertisement referred to in section 143 and the offers to the governments and transit authorities referred to in subsection 145(1).

• Marginal note: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.

Marginal note:Obligation following return

• 146.01 (1) If, by reason of the instrument or act by which a railway line or an operating interest in a railway line is transferred through the process set out in sections 143 to 145 or otherwise, the railway line or operating interest in the railway line returns to the railway company that transferred it, the railway company shall, within 60 days after the day on which the return takes place, resume operations of the line or follow the process set out in sections 143 to 145.

• Marginal note:No condition or obligation

  (2) If a railway line or operating interest in a railway line returns to a railway company that transferred it and the company decides to follow the process set out in sections 143 to 145 in respect of the railway line or operating interest, the company is not subject to subsection 142(2) in respect of the railway line or operating interest and has no obligations under this Act in respect of the operation of the railway line.

Marginal note:Exception

146.02 Despite section 146.01, if a railway line or operating interest in a railway line returns to a railway company referred to in that section and, before the day on which the return takes place, an agreement was in force between the person or entity that owned the railway line or had the operating interest in the railway line immediately before the return and a public passenger service provider as defined in section 87 in respect of the operation of a passenger rail service on that railway line, then, unless the public passenger service provider indicates otherwise before that day, the rights and obligations of the person or entity under the agreement in respect of the operation of that service on that line vest, as of that day, in the railway company and the railway company shall resume operations of the railway line.

Marginal note:Compensation

• 146.1 (1) A railway company that discontinues operating a grain-dependent branch line listed in Schedule I, or a portion of one, that is in a municipality or district shall, commencing on the date on which notice was provided under subsection 146(1), make three annual payments to the municipality or district in the amount equal to $10,000 for each mile of the line or portion in the municipality or district.

• Marginal note:Compensation

  (2) If a railway company to which subsection 146.01(1) applies does not resume operations on a grain-dependent branch line listed in Schedule I within the period provided for in that subsection and does not enter into an agreement for the sale, lease or other transfer of that railway line, or applicable interest in that railway line, after following the process set out in sections 143 to 145, the railway company shall, beginning on the day after the last day on which its offer could have been accepted under section 145, make the annual payments referred to in subsection (1).

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Dismantling permitted

  (8) If the offer is not accepted, the railway company may dismantle the siding or spur on providing notice to the Agency.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Costs

  (4) The applicant shall reimburse the Agency’s costs associated with the application.

Marginal note: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.

Marginal note: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.

Marginal note:Complaints

146.6 If, after receiving a complaint, the Agency finds that a railway company is not complying with this Division, the Agency may order it to take any measures that the Agency considers appropriate to comply with this Division.

DIVISION VITransportation of Western Grain

Interpretation

Marginal note:Definitions

147 In this Division,

crop year

crop year means the period beginning on August 1 in any year and ending on July 31 in the next year; (campagne agricole)

export

export, in respect of grain, means shipment by a vessel, as defined in section 2 of the Canada Shipping Act, 2001 , to any destination outside Canada and shipment by any other mode of transport to the United States for use of the grain in that country and not for shipment out of that country; (exportation)

government hopper car

government hopper car[Repealed, 2018, c. 10, s. 39]

grain

grain means

• (a) any grain or crop included in Schedule II that is grown in the Western Division, or any product of it included in Schedule II that is processed in the Western Division, or

• (b) any grain or crop included in Schedule II that is grown outside Canada and imported into Canada, or any product of any grain or crop included in Schedule II that is itself included in Schedule II and is processed outside Canada and imported into Canada; (grain)

joint line movement

joint line movement[Repealed, 2000, c. 16, s. 9]

maximum rate scale

maximum rate scale[Repealed, 2000, c. 16, s. 9]

movement

movement, in respect of grain, means the carriage of grain by a prescribed railway company over a railway line from a point on any line west of Thunder Bay or Armstrong, Ontario, to

• (a) Thunder Bay or Armstrong, Ontario,

• (b) Churchill, Manitoba for export,

• (c) a port in British Columbia for export, other than export to the United States for consumption in that country, or

• (d) a point west of Thunder Bay or Armstrong, Ontario, if the grain is to be carried to a port in British Columbia for export, other than export to the United States for consumption in that country; (mouvement du grain)

port in British Columbia

port in British Columbia includes Vancouver, North Vancouver, New Westminster, Roberts Bank, Prince Rupert, Ridley Island, Burnaby, Fraser Mills, Fraser Surrey, Fraser Wharves, Lake City, Lulu Island Junction, Port Coquitlam, Port Moody, Steveston, Tilbury and Woodwards Landing; (port de la Colombie-Britannique)

prescribed railway company

prescribed railway company means the Canadian National Railway Company, the Canadian Pacific Railway Company and any railway company that may be specified in the regulations; (compagnie de chemin de fer régie)

Western Division

Western Division means the part of Canada lying west of the meridian passing through the eastern boundary of the City of Thunder Bay, including the whole of the Province of Manitoba. (région de l’Ouest)

Application of Division IV

Marginal note:Application to tariffs and rates

148 The provisions of Division IV apply, with such modifications as the circumstances require, to tariffs and rates under this Division to the extent that those provisions are not inconsistent with this Division.

Tariffs

Marginal note:Issuance and publication

• 149 (1) A prescribed railway company shall issue and publish tariffs that include single car rates in respect of the movement of grain from each grain delivery point on its railway.

• Marginal note:Prohibition

  (2) No prescribed railway company shall establish a single car rate in a tariff in respect of the movement of grain from a grain delivery point on one of its branch lines that is more than three per cent higher than any single car rate in its tariffs for the movement of the same type of grain under substantially similar conditions for a substantially similar distance from the grain delivery point on one of its main lines that is nearest, as measured in a straight line, to the grain delivery point on the branch line.

Maximum Grain Revenue Entitlement

Marginal note:Ceiling

• 150 (1) A prescribed railway company’s revenues, as determined by the Agency, for the movement of grain in a crop year may not exceed the company’s maximum revenue entitlement for that year as determined under subsection 151(1).

• Marginal note:Payment of excess and penalty

  (2) If a prescribed railway company’s revenues, as determined by the Agency, for the movement of grain in a crop year exceed the company’s maximum revenue entitlement for that year as determined under subsection 151(1), the company shall pay out the excess amount, and any penalty that may be specified in the regulations, in accordance with the regulations.

• Marginal note:Items not included in revenue

  (3) For the purposes of this section, a prescribed railway company’s revenue for the movement of grain in a crop year shall not include

  • (a) incentives, rebates or any similar reductions paid or allowed by the company;

  • (b) any amount that is earned by the company and that the Agency determines is reasonable to characterize as a performance penalty or as being in respect of demurrage or for the storage of railway cars loaded with grain;

  • (c) compensation for running rights;

  • (d) any amount that is earned by the company at the interswitching rate determined in accordance with section 127.1; or

  • (e) any amount that is earned by the company for the movement of grain in containers on flat cars.

• Marginal note:Impermissible reductions

  (4) For the purposes of this section, a prescribed railway company’s revenue for the movement of grain in a crop year shall not be reduced by amounts paid or allowed as dispatch by the company for loading or unloading grain before the expiry of the period agreed on for loading or unloading the grain.

• Marginal note:Reductions from revenue

  (5) For the purposes of this section, if the Agency determines that it was reasonable for a prescribed railway company to make a contribution for the development of grain-related facilities to a grain handling undertaking that is not owned by the company, the company’s revenue for the movement of grain in a crop year shall be reduced by any amount that the Agency determines constitutes the amortized amount of the contribution by the company in the crop year.

• Marginal note:Agency to determine revenue

  (6) The Agency shall make the determination of a prescribed railway company’s revenues for the movement of grain in a crop year on or before December 31 of the following crop year.

150.1 to 150.4 [Repealed, 2000, c. 16, s. 10]

Marginal note:Maximum revenue entitlement

• 151 (1) A prescribed railway company’s maximum revenue entitlement for the movement of grain in a crop year is the amount determined by the Agency in accordance with the formula

  [A/B + ((C - D) × $0.022)] × E × F

  where

  A

  is the company’s revenues for the movement of grain in the base year;

  B

  is the number of tonnes of grain involved in the company’s movement of grain in the base year;

  C

  is the number of miles of the company’s average length of haul for the movement of grain in that crop year as determined by the Agency;

  D

  is the number of miles of the company’s average length of haul for the movement of grain in the base year;

  E

  is the number of tonnes of grain involved in the company’s movement of grain in the crop year as determined by the Agency; and

  F

  is the volume-related composite price index that applies to the company, as determined by the Agency.

• Marginal note:Canadian National Railway Company

  (2) For the purposes of subsection (1), in the case of the Canadian National Railway Company,

  • (a) A is $348,000,000;

  • (b) B is 12,437,000; and

  • (c) D is 1,045.

• Marginal note:Canadian Pacific Railway Company

  (3) For the purposes of subsection (1), in the case of the Canadian Pacific Railway Company,

  • (a) A is $362,900,000;

  • (b) B is 13,894,000; and

  • (c) D is 897.

• Marginal note:Volume-related composite price index

  (4) The following rules are applicable to a volume-related composite price index:

  • (a) in the crop year 2016-2017, each prescribed railway company’s index is 1.3275;

  • (b) an index shall be determined in respect of each prescribed railway company; and

  • (c) the Agency shall make adjustments to each prescribed railway company’s index to reflect the costs incurred by the prescribed railway company to obtain hopper cars for the movement of grain and the costs incurred by the prescribed railway company for the maintenance of those hopper cars.

• Marginal note:When Agency to make determination

  (5) The Agency shall make the determination of a prescribed railway company’s maximum revenue entitlement for the movement of grain in a crop year under subsection (1) on or before December 31 of the following crop year and shall make the determination of a prescribed railway company’s volume-related composite price index on or before April 30 of the previous crop year.

• Marginal note: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.

Marginal note:Report to Minister

• 151.01 (1) Before the beginning of every crop year, a prescribed railway company shall provide to the Minister a report, in the form and manner that may be specified by the Minister, that

  • (a) assesses the prescribed railway company’s ability to move the grain that it is required to move during the crop year taking into account the total volume of grain expected to be moved for the crop year; and

  • (b) identifies the steps that the prescribed railway company is taking to enable it to move the grain that it is required to move during the crop year.

• Marginal note:Report — winter contingency plans

  (2) Before October 1 of every year, a prescribed railway company shall provide to the Minister a report, in the form and manner that may be specified by the Minister, that describes the railway company’s contingency plans to enable it to move the grain along with other traffic when faced with winter weather conditions.

• Marginal note:Publication

  (3) The prescribed railway company shall publish the reports referred to in subsections (1) and (2) on its Internet site at the same time that they are provided to the Minister.

List of Available Sidings

Marginal note:List of available sidings

• 151.1 (1) A prescribed railway company shall prepare and keep up to date a list of the sidings that it makes available in the Western Division where railway cars that are allocated by the Canadian Grain Commission under subsection 87(2) of the Canada Grain Act can be loaded.

• Marginal note:Publication of list

  (2) The railway company shall publish the list on its Internet site.

• Marginal note:Removal from list

  (3) The railway company may remove a siding from the list only after the expiry of 60 days after the publication of a notice of its intention to do so in a newspaper of general circulation in the area where the siding is located.

Regulations

Marginal note:Regulations

152 The Governor in Council may make regulations

• (a) specifying railway companies for the purposes of the definition prescribed railway company in section 147;

• (b) specifying, in respect of a prescribed railway company other than the Canadian National Railway Company or the Canadian Pacific Railway Company,

  • (i) revenues for the movement of grain in the base year,

  • (ii) the number of tonnes for the movement of grain in the base year, and

  • (iii) the average length of haul for the movement of grain in the base year;

• (c) specifying a penalty for the purposes of subsection 150(2) and respecting the paying out of the penalty and the excess amount; and

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

DIVISION VI.1Public Passenger Service Providers

Dispute Resolution

Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note: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

Marginal note: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.

• Marginal note: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.

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

designated good means

• (a) crude oil; or

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

Fund

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

railway accident

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. (accident ferroviaire)

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.