Bill C-11

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Public Passenger Service Providers

Dispute Resolution

Application

152.1 (1) Whenever a public passenger service provider and a railway company are unable to agree in respect of any matter raised in the context of the negotiation of any agreement concerning the use of the railway company’s railway, land, equipment, facilities or services by the public passenger service provider or concerning the conditions, or the amount to be paid, for that use, the public passenger service provider may, after reasonable efforts to resolve the matter have been made, apply to the Agency to decide the matter.

Application

(2) Whenever a public passenger service provider and a railway company are unable to agree in respect of any matter raised in the context of the implementation of any matter previously decided by the Agency, either the public passenger service provider or the railway company may, after reasonable efforts to resolve the matter have been made, apply to the Agency to decide the matter.

Amount to be fixed

152.2 (1) If, pursuant to an application made under subsection 152.1(1), the Agency fixes the amount to be paid by the public passenger service provider for the use of any of the railway company’s railway, land, equipment, facilities or services, that amount must reflect the cost associated with the public passenger service provider’s use of that railway, land or equipment or those facilities or services.

Factors

(2) In determining that amount, the Agency must take into consideration, among other things,

(a) the variable costs incurred by the railway company as a result of the public passenger service provider’s use of the railway company’s railway, land, equipment, facilities or services, including, but not limited to, its variable costs incurred to maintain safe operations and to avoid congestion and undue delay;

(b) the railway company’s cost of capital, based on a rate set by the Agency, applied to the net book value of the assets to be used by the public passenger service provider, less any amount to be paid by the public passenger service provider in respect of those assets;

(c) the cost of any improvements made by the railway company in relation to the public passenger service provider’s use of the railway company’s railway, land, equipment, facilities or services;

(d) a reasonable contribution towards the railway company’s constant costs; and

(e) the value of any benefits that would accrue to the railway company from any investment made by the public passenger service provider.

Duration of decision

152.3 Any decision of the Agency in respect of an application made under subsection 152.1(1) is binding on the parties for a period of five years after the day on which the decision is made, or for any other period agreed to by the parties that is specified in the decision.

Agreements

Providing copies

152.4 (1) A railway company or a public passenger service provider must provide to any person who requests it

(a) a copy of any agreement entered into on or after the day on which this section comes into force concerning the use of the railway company’s railway, land, equipment, facilities or services; and

(b) subject to subsection (2), a copy of any agreement entered into before the day on which this section comes into force concerning the use of the railway company’s railway, land, equipment, facilities or services.

Exclusion

(2) The Agency may, on application by a railway company or a public passenger service provider, exclude an agreement, or any specified portion of an agreement, from the application of paragraph (1)(b) on the grounds that harm would likely result to the applicant if the agreement, or the specified portion, were to be disclosed.

45. The Act is amended by adding the following after section 157:

Agreements

46. Subsection 157.1(1) of the Act is replaced by the following:

Agreements to apply transportation law to provincial railways

157.1 (1) The Minister may enter into an agreement with a provincial minister responsible for transportation matters providing for the administration, in relation to persons who operate railways within the legislative authority of the province, of any law respecting:

(a) railway safety, accident investigation and railway crossings; or

(b) railway noise or the regulation of the rates and conditions of service of railway companies to the extent that those matters are governed by this Act.

47. Section 158 of the Act and the heading before it are replaced by the following:

Agreements made with provincial authorities

158. The Minister may enter into an agreement with a provincial authority to authorize the provincial authority to regulate a railway in the same manner and to the same extent as the Minister may regulate the construction, operation and safety of a railway as well as the rates and conditions of service.

48. The Act is amended by adding the following after the heading “Administra- tive Monetary Penalties” before section 177:

Definition of “Tribunal”

176.1 For the purposes of sections 180.1 to 180.7, “Tribunal” means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act.

49. (1) The portion of section 177 of the Act before paragraph (a) is replaced by the following:

Regulations by Agency

177. (1) The Agency may, by regulation,

(2) Paragraph 177(1)(b) of the French version of the Act is replaced by the following:

b) prévoir le montant maximal — plafonné, dans le cas des personnes physiques, à 5 000 $ et, dans le cas des personnes morales, à 25 000 $ — de la sanction applicable à chaque contravention à un texte ainsi désigné.

(3) Section 177 of the Act is amended by adding the following after subsection (1):

Regulations by Minister

(2) The Minister may, by regulation,

(a) designate as a provision or requirement the contravention of which may be proceeded with as a violation in accordance with sections 179 and 180 any provision of section 51 or of any regulation made under section 50 or 51, or any requirement of any of those provisions; and

(b) prescribe the maximum amount payable for each violation, but the amount shall not exceed

(i) $5,000, in the case of an individual, and

(ii) $25,000, in the case of a corporation.

50. (1) The portion of subsection 178(1) of the Act before paragraph (a) is replaced by the following:

Notices of violation

178. (1) The Agency, in respect of a violation referred to in subsection 177(1), or the Minister, in respect of a violation referred to in subsection 177(2), may

(2) Subsection 178(3) of the French version of the Act is replaced by the following:

Certificat

(3) Chaque agent reçoit un certificat établi en la forme fixée par l’Office ou le ministre, selon le cas, et attestant sa qualité, qu’il présente sur demande à la personne à qui il veut demander des renseignements.

51. Subsection 179(1) of the French version of the Act is replaced by the following:

Violation

179. (1) Toute contravention à un texte désigné au titre de l’article 177 constitue une violation pour laquelle le contrevenant s’expose à la sanction établie conformément à cet article.

2001, c. 29, s. 52

52. Section 180 of the Act is replaced by the following:

Issuance of notice of violation

180. If a person designated as an enforcement officer under paragraph 178(1)(a) believes that a person has committed a violation, the enforcement officer may issue and serve on the person a notice of violation that names the person, identifies the violation and sets out

(a) the penalty, established in accordance with the regulations made under section 177, for the violation that the person is liable to pay; and

(b) the particulars concerning the time for paying and the manner of paying the penalty.

Option

180.1 A person who has been served with a notice of violation must either pay the amount of the penalty specified in the notice or file with the Tribunal a written request for a review of the facts of the alleged contravention or of the amount of the penalty.

Payment of specified amount precludes further proceedings

180.2 If a person who is served with a notice of violation pays the amount specified in the notice in accordance with the particulars set out in it, the Minister shall accept the amount as and in complete satisfaction of the amount of the penalty for the contravention by that person of the designated provision and no further proceedings under this Part shall be taken against the person in respect of that contravention.

Request for review of determination

180.3 (1) A person who is served with a notice of violation and who wishes to have the facts of the alleged contravention or the amount of the penalty reviewed shall, on or before the date specified in the notice or within any further time that the Tribunal on application may allow, file a written request for a review with the Tribunal at the address set out in the notice.

Time and place for review

(2) On receipt of a request filed under subsection (1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.

Review procedure

(3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.

Burden of proof

(4) The burden of establishing that a person has contravened a designated provision is on the Minister.

Person not compelled to testify

(5) A person who is alleged to have contravened a designated provision is not required, and shall not be compelled, to give any evidence or testimony in the matter.

Certificate

180.4 If a person fails to pay the amount of the penalty specified in a notice of violation within the time specified in it and does not file a request for a review under subsection 180.3(1), the person is deemed to have committed the contravention alleged in the notice, and the Minister may obtain from the Tribunal a certificate in the form that may be established by the Governor in Council that indicates the amount of the penalty specified in the notice.

Determination by Tribunal member

180.5 If, at the conclusion of a review under section 180.3, the member of the Tribunal who conducts the review determines that

(a) the person has not contravened the designated provision that the person is alleged to have contravened, the member of the Tribunal shall without delay inform the person and the Minister of the determination and, subject to section 180.6, no further proceedings under this Part shall be taken against the person in respect of the alleged contravention; or

(b) the person has contravened the designated provision that the person is alleged to have contravened, the member of the Tribunal shall without delay inform the person and the Minister of the determination and, subject to any regulations made under section 177, of the amount determined by the member of the Tribunal to be payable by the person in respect of the contravention and, if the amount is not paid to the Tribunal by or on behalf of the person within the time that the member of the Tribunal may allow, the member of the Tribunal shall issue to the Minister a certificate in the form that may be established by the Governor in Council, setting out the amount required to be paid by the person.

Right of appeal

180.6 (1) The Minister or a person affected by a determination made under section 180.5 may, within 30 days after the determination, appeal it to the Tribunal.

Loss of right of appeal

(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

Disposition of appeal

(3) The appeal panel of the Tribunal assigned to hear the appeal may dispose of the appeal by dismissing it or allowing it and, in allowing the appeal, the panel may substitute its decision for the determination appealed against.

Certificate

(4) If the appeal panel finds that a person has contravened the designated provision, the panel shall without delay inform the person of the finding and, subject to any regulations made under section 177, of the amount determined by the panel to be payable by the person in respect of the contravention and, if the amount is not paid to the Tribunal by or on behalf of the person within the time allowed by the Tribunal, the Tribunal shall issue to the Minister a certificate in the form that may be established by the Governor in Council, setting out the amount required to be paid by the person.

Registration of certificate

180.7 (1) If the time limit for the payment of an amount determined by the Minister in a notice of violation has expired, the time limit for the request for a review has expired, the time limit for an appeal has expired, or an appeal has been disposed of, on production in any superior court, a certificate issued under section 180.4, paragraph 180.5(b) or subsection 180.6(4) shall be registered in the court. When it is registered, a certificate has the same force and effect, and proceedings may be taken in connection with it, as if it were a judgment in that court obtained by Her Majesty in right of Canada against the person named in the certificate for a debt of the amount set out in the certificate.

Recovery of costs and charges

(2) All reasonable costs and charges attendant on the registration of the certificate are recoverable in like manner as if they had been certified and the certificate had been registered under subsection (1).

Amounts received deemed public moneys

(3) An amount received by the Minister or the Tribunal under this section is deemed to be public money within the meaning of the Financial Administration Act.

References to “Minister”

180.8 (1) In the case of a violation referred to in subsection 177(1), every reference to the “Minister” in sections 180.3 to 180.7 shall be read as a reference to the Agency or to a person designated by the Agency.

Delegation by Minister

(2) In the case of a violation referred to in subsection 177(2), the Minister may delegate to the Agency any power, duty or function conferred on the Minister under this Part.

R.S., c. 32 (4th Supp.)

RAILWAY SAFETY ACT

2002, c. 8, s. 168

53. Subsection 34(1) of the Railway Safety Act is replaced by the following:

Enforcement through court

34. (1) An order or emergency directive made by the Minister may be made an order of the Federal Court or of any superior court, and shall be enforced in the same manner as an order of the court.

54. The Act is amended by adding the following after section 43:

PART IV.1

POLICE CONSTABLES

Appointment

44. (1) A judge of a superior court may appoint a person as a police constable for the enforcement of Part III of the Canada Transportation Act and for the enforcement of the laws of Canada or a province in so far as their enforcement relates to the protection of property owned, possessed or administered by a railway company and the protection of persons and property on that property.

Limitation

(2) The appointment may only be made on the application of a railway company that owns, possesses or administers property located within the judge’s jurisdiction.

Jurisdiction

(3) The police constable has jurisdiction on property under the administration of the railway company and in any place within 500 m of property that the railway company owns, possesses or administers.

Power to take persons before a court

(4) The police constable may take a person charged with an offence under Part III of the Canada Transportation Act, or any law referred to in subsection (1), before a court that has jurisdiction in such cases over any area where property owned, possessed or administered by the railway company is located, whether or not the person was arrested, or the offence occurred or is alleged to have occurred, within that area.

Court’s jurisdiction

(5) The court must deal with the person as though the person had been arrested, and the offence had occurred, within the area of the court’s jurisdiction, but the court may not deal with the person if the offence is alleged to have occurred outside the province in which the court is sitting.

Dismissal or discharge of police constable

(6) A superior court judge referred to in subsection (1) or the railway company may dismiss or discharge the police constable and the dismissal or discharge terminates the powers, duties and privileges conferred on the constable by this section.

Procedures for dealing with complaints

44.1 (1) If one or more police constables are appointed with respect to a railway company, the railway company must

(a) establish procedures for dealing with complaints concerning police constables;

(b) designate one or more persons to be responsible for implementing the procedures; and

Procedures to be filed with Minister

(2) The railway company must file with the Minister a copy of its procedures for dealing with complaints and must implement any recommendations made by the Minister, including recommendations concerning how the procedures are to be made public.

TRANSITIONAL PROVISIONS

Agreements entered into prior to the coming into force of section 44

55. (1) Section 152.1 of the Canada Transportation Act, as enacted by section 44 of this Act, does not apply in respect of agreements entered into before the day on which section 44 of this Act comes into force.

Exception

(2) Despite subsection (1), in the case of an agreement between VIA Rail Canada Inc. and a railway company that was entered into before the day on which section 44 of this Act comes into force, Via Rail Canada Inc. may apply to the Canadian Transportation Agency to decide any matter respecting the priority to be given to the trains of any of the parties to the agreement. In making its decision, the Agency shall have regard to the public interest and to the operational requirements of the parties to the agreement. Section 152.2 of the Canada Transportation Act, as enacted by section 44 of this Act, applies, with any modifications that are necessary, if the Agency, as part of its decision, fixes an amount to be paid by Via Rail Canada Inc. In the event of any inconsistency between the Agency’s decision and the provisions of the agreement, the Agency’s decision prevails to the extent of the inconsistency.

Members continued

56. (1) Despite sections 3 to 5 of this Act, the members of the Canadian Transportation Agency, including its Chairperson and Vice-Chairperson, who hold office on the coming into force of those sections continue to hold office according to the conditions of their appointments, until the expiry of their respective terms.

Temporary limitation on appointment of new members

(2) Despite section 3 of this Act, the Governor in Council may not appoint or reappoint members of the Canadian Transportation Agency under paragraph 7(2)(a) or subsection 8(2), respectively, of the Canada Transportation Act until the number of members of the Agency, other than the Chairperson and the Vice-Chairperson, is less than three.

Exception for appointment of Chairperson and Vice-Chairperson

(3) Despite subsection (2) and section 3 of this Act, the Governor in Council may appoint or reappoint members of the Canadian Transportation Agency to be designated as the Chairperson or the Vice-Chairperson of the Agency under subsection 7(3) of the Canada Transportation Act.

Adjustment to the volume-related composite price index

57. Despite subsection 151(5) of the Canada Transportation Act, the Canadian Transportation Agency shall, once only, on request of the Minister of Transport and on the date set by the Agency, adjust the volume-related composite price index to reflect costs incurred by the prescribed railway companies, as defined in section 147 of that Act, for the maintenance of hopper cars used for the movement of grain, as defined in section 147 of that Act.

Police constables appointed under section 158 of the Canada Transportation Act

58. Every police constable appointed under section 158 of the Canada Transportation Act who holds office on the day on which section 54 of this Act comes into force is deemed to have been appointed under section 44 of the Railway Safety Act, as enacted by section 54 of this Act.

CONSEQUENTIAL AMENDMENTS

R.S., c. 35 (4th Supp.)

Air Canada Public Participation Act

2000, c. 15, s. 19

59. (1) Subsections 10.1(1) and (2) of the Air Canada Public Participation Act are replaced by the following:

Deemed approval

10.1 (1) The proposed acquisition described in a letter dated December 21, 1999 from 853350 Alberta Ltd. and Air Canada to the Minister of Transport is deemed to be a transaction that has been approved by the Governor in Council under subsection 53.2(7) of the Canada Transportation Act on the day on which that subsection comes into force.

Deemed terms and conditions

(2) The undertakings provided by 853350 Alberta Ltd. and Air Canada to the Minister of Transport in the letter referred to in subsection (1) are deemed to be terms and conditions specified in an approval by the Governor in Council under subsection 53.2(7) of the Canada Transportation Act that relate to national transportation concerns, and the undertakings provided by 853350 Alberta Ltd. and Air Canada to the Commissioner of Competition that are set out in Annex A to a letter from the Commissioner dated December 21, 1999 in respect of the acquisition referred to in that subsection are deemed to be terms and conditions of an approval under subsection 53.2(7) of the Canada Transportation Act that relate to potential prevention or lessening of competition.

2000, c. 15, s. 19

(2) The portion of subsection 10.1(4) of the French version of the Act before paragraph (a) is replaced by the following:

Cessation d’effet des engagements

(4) Le gouverneur en conseil peut, par décret, déclarer que la société 853350 Alberta Ltd. et Air Canada ne sont pas assujetties aux conditions mentionnées au paragraphe (2) si les engagements cessent d’avoir effet et ne reprennent pas effet dans les circonstances prévues :

R.S., c. L-2

Canada Labour Code

1998, c. 10, s. 182

60. The definition “private constable” in subsection 3(1) of the Canada Labour Code is replaced by the following:

“private constable”
« agent de police privé »

“private constable” means a person appointed as a police constable under Part IV.1 of the Railway Safety Act;

R.S., c. C-34; R.S., c. 19 (2nd Supp.), s. 19

Competition Act

2000, c. 15, s. 12

61. Subsections 29.1(3) to (5) of the Competition Act are replaced by the following:

Contents of request

(3) Requests under this section must be in writing and must

(a) specify the information referred to in any of paragraphs (2)(a) to (f) that is required; and

(b) state that the Minister of Transport requires the information for the purposes of section 53.1 or 53.2 of the Canada Transportation Act and identify the transaction being considered under that section.

Restriction

(4) The information communicated under subsection (1) may be used only for the purposes of section 53.1 or 53.2, as the case may be, of the Canada Transportation Act.

Confidentiality

(5) No person who performs or has performed duties or functions in the administration or enforcement of the Canada Transportation Act shall communicate or allow to be communicated to any other person any information communicated under subsection (1), except to persons who perform duties or functions under section 53.1 or 53.2 of that Act.

2000, c. 15, s. 14

62. Paragraph 94(c) of the Act is replaced by the following:

(c) a merger or proposed merger approved under subsection 53.2(7) of the Canada Transportation Act and in respect of which the Minister of Transport has certified to the Commissioner the names of the parties.

COORDINATING AMENDMENT

Bill C-6

63. (1) Subsections (2) and (3) apply if Bill C-6, introduced in the 1st session of the 39th Parliament and entitled An Act to amend the Aeronautics Act and to make consequential amendments to other Acts (referred to in this section as the “other Act”), receives royal assent.

(2) If section 52 of this Act comes into force before section 44 of the other Act, then section 44 of the other Act and the heading before it are repealed.

(3) If section 52 of this Act comes into force on the same day as section 44 of the other Act, then section 44 of the other Act is deemed to have come into force before section 52 of this Act.

COMING INTO FORCE

Order in council

64. The provisions of this Act, other than section 63, come into force on a day or days to be fixed by order of the Governor in Council.

Published under authority of the Speaker of the House of Commons

Available from:
Publishing and Depository Services
Public Works and Government Services Canada

Explanatory Notes

Clause 45: New.

Clause 46: Existing text of subsection 157.1(1):

Clause 47: Existing text of the heading and section 158:

Police Constables

158. (1) A judge of a superior court may appoint a person as a police constable for the enforcement of this Part and for the enforcement of the laws of Canada or a province in so far as their enforcement relates to the protection of property owned or administered by a railway company and the protection of persons and property on that property.

(2) The appointment must only be made on the application of a railway company that owns or administers property located within the judge’s jurisdiction.

(3) The police constable has jurisdiction on property under the administration of the railway company and in any place within 500 m of property that it owns or administers.

(4) The police constable may take a person charged with an offence under this Part, or any law referred to in subsection (1), before a court that has jurisdiction in such cases over any area where property owned or administered by the railway company is located, whether or not the person was arrested, or the offence occurred or is alleged to have occurred, within that area.

(5) The court shall deal with the person as though the person had been arrested, and the offence had occurred, within the area of the court’s jurisdiction, but the court shall not deal with the person if the offence is alleged to have occurred outside the province in which the court is sitting.

Clause 48: New.

Clause 49: (1) and (2) Relevant portion of section 177:

177. The Agency may, by regulation,

...

(b) prescribe the maximum amount payable for each violation, but the amount shall not exceed

(i) $5,000, in the case of an individual, and

(ii) $25,000, in the case of a corporation.

(3) New.

Clause 50: (1) Relevant portion of subsection 178(1):

178. (1) The Agency may

(2) Existing text of subsection 178(3):

(3) Every person designated as an enforcement officer pursuant to paragraph (1)(a) shall receive an authorization in prescribed form attesting to the person’s designation and shall, on demand, present the authorization to any person from whom the enforcement officer requests information in the course of the enforcement officer’s duties.

Clause 51: Existing text of subsection 179(1):

179. (1) Every person who contravenes a provision, requirement or condition designated under section 177 commits a violation and is liable to a penalty fixed pursuant to that section.

Clause 52: Existing text of section 180:

180. (1) Where a person designated as an enforcement officer pursuant to paragraph 178(1)(a) believes that a person has committed a violation, the enforcement officer may issue and serve on the person a notice of violation that names the person, identifies the violation and sets out

(a) the penalty, established in accordance with the regulations, for the violation that the person is liable to pay; and

(b) particulars concerning the time for paying and the manner of paying the penalty.

(2) Sections 7.8 to 8.2 of the Aeronautics Act apply to the contravention of a provision, requirement or condition designated under section 177, with any modifications that are necessary, and a reference in any of those provisions or in any document issued under any of those provisions to

(a) “this Act” shall be read as a reference to this Act;

(b) “designated provision” shall be read as a reference to a provision, requirement or condition designated under paragraph 177(a);

(c) “Minister” shall be read as a reference to the Agency or, in any provision other than section 7.9 of the Aeronautics Act, to a person designated by the Agency;

(d) “notice” shall be read as a reference to a notice of violation; and

(e) “regulations made under paragraph 7.6(1)(b)” shall be read as a reference to regulations made under paragraph 177(b).

Railway Safety Act

Clause 53: Existing text of subsection 34(1):

34. (1) An order or emergency directive made by the Minister may be made an order of any superior court, and shall be enforced in the same manner as an order of the court.

Clause 54: New.

Air Canada Public Participation Act

Clause 59: (1) Existing text of subsections 10.1(1) and (2):

10.1 (1) The proposed acquisition described in a letter dated December 21, 1999 from 853350 Alberta Ltd. and Air Canada to the Minister of Transport is deemed to be a transaction that has been approved by the Governor in Council under subsection 56.2(6) of the Canada Transportation Act on the day on which that subsection comes into force.

(2) The undertakings provided by 853350 Alberta Ltd. and Air Canada to the Minister of Transport in the letter referred to in subsection (1) are deemed to be terms and conditions of an order made under subsection 56.2(6) of the Canada Transportation Act that relate to national transportation concerns, and the undertakings provided by 853350 Alberta Ltd. and Air Canada to the Commissioner of Competition that are set out in Annex A to a letter from the Commissioner dated December 21, 1999 in respect of the acquisition referred to in that subsection are deemed to be terms and conditions of an order made under subsection 56.2(6) of the Canada Transportation Act that relate to potential prevention or lessening of competition.

(2) Relevant portion of subsection 10.1(4):

(4) The Governor in Council may, by order, declare that 853350 Alberta Ltd. and Air Canada are not subject to the terms and conditions referred to in subsection (2) if the undertakings cease to have effect and are not revived in the circumstances described in

Canada Labour Code

Clause 60: Existing text of the definition:

“private constable” means a person appointed as a constable under Part III of the Canada Transportation Act;

Competition Act

Clause 61: Existing text of subsections 29.1(3) to (5):

(3) Requests under this section must be in writing and must

(a) specify the information referred to in any of paragraphs (2)(a) to (f) that is required; and

(b) state that the Minister of Transport requires the information for the purposes of section 56.1 or 56.2 of the Canada Transportation Act and identify the transaction being considered under that section.

(4) The information communicated under subsection (1) may be used only for the purposes of section 56.1 or 56.2, as the case may be, of the Canada Transportation Act.

Clause 62: Relevant portion of section 94:

94. The Tribunal shall not make an order under section 92 in respect of

...

(c) a merger or proposed merger approved under subsection 56.2(6) of the Canada Transportation Act and in respect of which the Minister of Transport has certified to the Commissioner the names of the parties.