Bill C-8

56-57 ELIZABETH II

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CHAPTER 5

An Act to amend the Canada Transportation Act (railway transportation)

[Assented to 28th February, 2008]

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

CANADA TRANSPORTATION ACT

1. (1) Subsections 27(2) and (3) of the Canada Transportation Act are repealed.

(2) Subsection 27(5) of the Act is repealed.

2. Subsection 119(1) of the Act is replaced by the following:

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.

3. The Act is amended by adding the following after section 120:

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.

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

(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.

(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.

(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.

(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.

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

4. The Act is amended by adding the following after section 146:

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.

(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.

5. Section 146.1 of the Act is renumbered as subsection 146.1(1) and is amended by adding the following:

(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).

6. The Act is amended by adding the following after section 151:

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.

(2) The railway company shall publish the list on its Internet site.

(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.

7. The Act is amended by adding the following after section 169:

169.1 (1) The parties to a final offer arbitration may, by agreement, refer to a mediator, which may be the Agency, a matter that has been submitted for a final offer arbitration under section 161.

(2) The Agency may establish a roster of persons, which may include members and staff of the Agency, to act as mediators in any matter referred to it under subsection (1).

(3) All matters relating to the mediation shall be kept confidential, unless the parties otherwise agree, and information provided by a party for the purposes of the mediation shall not be used for any other purpose without the consent of that party.

(4) Unless the parties otherwise agree, the mediation shall be completed within 30 days after the matter is referred for mediation.

(5) The mediation has the effect of

(a) staying the conduct of the final offer arbitration for the period of the mediation; and

(b) extending the time within which the arbitrator must make a decision in the matter of the final offer arbitration by the period of the mediation.

(6) The person who acts as mediator may not act in any other proceedings in relation to any matter that was at issue in the mediation.

169.2 (1) In the case where more than one shipper is dissatisfied with the rate or rates charged or proposed to be charged by a carrier for the movement of goods, or with any conditions associated with the movement of goods, those shippers may, if the matter cannot be resolved between them and the carrier, submit the matter jointly to the Agency for a final offer arbitration, in which case sections 161 to 169 apply, with any modifications that the circumstances require.

(2) A matter submitted jointly to the Agency for a final offer arbitration shall be common to all the shippers and the shippers shall make a joint offer in respect of the matter, the terms of which apply to all of them.

(3) The Agency shall not have any matter submitted to it for a final offer arbitration under subsection (1) arbitrated unless the shippers demonstrate, to the satisfaction of the Agency, that an attempt has been made to mediate the matter.

(4) All matters relating to a mediation shall be kept confidential, unless the parties otherwise agree, and information provided by a party for the purposes of the mediation shall not be used for any other purpose without the consent of that party.

(5) The person who acts as mediator may not act in any other proceedings in relation to any matter that was at issue in the mediation.

(6) In the case of a matter that is submitted jointly under subsection (1),

(a) the period referred to in subsection 161.1(1) is 20 days;

(b) the arbitrator may, if he or she considers it necessary, extend any of the periods referred to in subsections 163(3) and (4) and paragraph 164.1(a); and

(c) the decision of the arbitrator shall, despite paragraph 165(2)(b), be rendered within 120 days or, in the case of an arbitration conducted in accordance with section 164.1, 90 days after the day on which the submission for the final offer arbitration is received by the Agency unless the parties agree otherwise.

169.3 (1) Despite sections 162 and 162.1, any application filed with the Agency by a carrier in respect of a matter submitted jointly to the Agency under subsection 169.2(1) shall be filed with the Agency no later than seven days after the day on which the joint submission is made.

(2) A copy of the application shall be served on each of the shippers making the joint submission no later than the day on which the application is required to be filed under subsection (1).

(3) The shippers, no later than five days after the day on which the last shipper was served under subsection (2), shall file with the Agency a joint answer to the application and serve a copy of it on the carrier.

(4) The carrier, no later than two days after the day on which it was served under subsection (3), shall file with the Agency a reply to the joint answer and serve a copy of it on each of the shippers.

(5) The Agency shall issue its decision on the application no later than the day on which the matter is required to be referred to arbitration under subsection 162(1).

(6) If no application referred to in subsection (1) is filed within the limit set out in that subsection, the matter submitted jointly is deemed to conform to the requirements of subsection 169.2(2).

AN ACT TO AMEND THE CANADA TRANSPORTATION ACT AND THE RAILWAY SAFETY ACT AND TO MAKE CONSEQUENTIAL AMENDMENTS TO OTHER ACTS

8. (1) Subsections (2) to (4) apply if Bill C-11, introduced in the 1st session of the 39th Parliament and entitled An Act to amend the Canada Transportation Act and the Railway Safety Act and to make consequential amendments to other Acts (referred to in this section as the “other Act”), receives royal assent.

(2) On the later of the day on which this Act receives royal assent and the day on which section 7 of the other Act comes into force — or, if those days are the same day, then on that day — section 36.2 of the Canada Transportation Act is amended by adding the following after subsection (1):

(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.

(3) On the later of the day on which this Act receives royal assent and the day on which section 38 of the other Act comes into force — or, if those days are the same day, then on that day — the Canada Transportation Act is amended by adding the following after section 146.01:

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.

(4) On the later of the day on which this Act receives royal assent and the day on which section 28 of the other Act comes into force — or, if those days are the same day, then on that day — section 160 of the Canada Transportation Act is replaced by the following:

160. Sections 161 to 169 also apply, with any modifications that the circumstances require, in respect of the rates charged or proposed to be charged by, and in respect of any of the conditions associated with the provision of services by, a railway company to any other railway company engaged in passenger rail services, except a public passenger service provider as defined in section 87.

COORDINATING AMENDMENTS

9. (1) Subsections (2) to (4) apply if Bill C-11, introduced in the 1st session of the 39th Parliament and entitled An Act to amend the Canada Transportation Act and the Railway Safety Act and to make consequential amendments to other Acts (referred to in this section as the “other Act”), receives royal assent.

(2) On the later of the day on which this Act receives royal assent and the day on which section 7 of the other Act comes into force — or, if those days are the same day, then on that day — subsection 36.2(1) of the Canada Transportation Act is replaced by the following:

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 or 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.

(3) If section 5 of this Act comes into force before section 41 of the other Act, section 41 of the other Act is replaced by the following:

41. Subsection 146.1(1) of the French version of the Act is replaced by the following:

(4) If section 5 of this Act comes into force on the same day as section 41 of the other Act, section 41 of the other Act is deemed to have come into force before section 5 of this Act.