Canada Transportation Act

1996, c-10

• SHORT TITLE
• HER MAJESTY
• APPLICATION
• NATIONAL TRANSPORTATION POLICY
• INTERPRETATION
• PART I
• PART II
• PART III
• PART IV
• PART V
• PART VI
• PART VII
• SCHEDULES
• Established by
• List of Amendments

Canada Transportation Act

CHAPTER C-10.4 (1996, c. 10)

[C-10.4]

An Act to continue the National Transportation Agency as the Canadian Transportation Agency, to consolidate and revise the National Transportation Act, 1987 and the Railway Act and to amend or repeal other Acts as a consequence

[Assented to 29th May, 1996]

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

SHORT TITLE

Short title

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

HER MAJESTY

Binding on Her Majesty

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

APPLICATION

Application generally

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

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.

Competition Act

(2) Nothing in or done under the authority of this Act affects the operation of the Competition Act.

NATIONAL TRANSPORTATION POLICY

Declaration

5. It is hereby declared that a safe, economic, efficient and adequate network of viable and effective transportation services accessible to persons with disabilities and that makes the best use of all available modes of transportation at the lowest total cost is essential to serve the transportation needs of shippers and travellers, including persons with disabilities, and to maintain the economic well-being and growth of Canada and its regions and that those objectives are most likely to be achieved when all carriers are able to compete, both within and among the various modes of transportation, under conditions ensuring that, having due regard to national policy, to the advantages of harmonized federal and provincial regulatory approaches and to legal and constitutional requirements,

and this Act is enacted in accordance with and for the attainment of those objectives to the extent that they fall within the purview of subject-matters under the legislative authority of Parliament relating to transportation.

INTERPRETATION

Definitions

6. In this Act,

"Agency"

« Office »

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

"carrier"

« transporteur »

"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;

"Chairperson"

« président »

"Chairperson" means the Chairperson of the Agency;

"goods"

« marchandises »

"goods" includes rolling stock and mail;

"member"

« membre »

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

"Minister"

« ministre »

"Minister" means the Minister of Transport;

"rolling stock"

« matériel roulant »

"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;

"shipper"

« expéditeur »

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

"sitting day of Parliament"

« jour de séance »

"sitting day of Parliament" means a day on which either House of Parliament sits;

"superior court"

« cour supérieure »

"superior court" means

"temporary member"

« membre temporaire »

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

"Vice-Chairperson"

« vice-président »

"Vice-Chairperson" means the Vice-Chairperson of the Agency.

PART I

ADMINISTRATION

Canadian Transportation Agency

Continuation and Organization

Agency continued

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

Composition of Agency

(2) The Agency shall consist of

    (a) not more than seven members appointed by the Governor in Council, and

    (b) 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.

Chairperson and Vice-Chairperson

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

Term of members

8. (1) Each member appointed under paragraph 7(2)(a) 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.

Reappointment

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

Continuation in office

(3) Where a member appointed under paragraph 7(2)(a) ceases to hold office, the Chairperson may authorize the member to continue to hear any matter that was before the member on the expiration 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 seven members under paragraph 7(2)(a) or up to three temporary members under subsection 9(1).

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).

Roster

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

Maximum number

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

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.

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.

Members - conflicts of interest

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

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.

Disposal of conflict of interest

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

Remuneration

Remuneration

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

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.

Members - retirement pensions

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

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.

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

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.

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.

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

Quorum

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

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,

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

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

Rules

17. The Agency may make rules respecting

Head Office

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.

Residence of Chairperson

(2) The Chairperson 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

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.

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

Duties of Secretary

21. (1) The Secretary of the Agency shall

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.

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.

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.

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

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.

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.

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.

Costs may be fixed or taxed

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

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.

Scale

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

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.

Relief

27. (1) On an application made to the Agency, the Agency may grant the whole or part of the application, or may make any order or grant any further or other relief that to the Agency seems just and proper.

Limitation

(2) Where an application is made to the Agency by a shipper in respect of a transportation rate or service, the Agency may grant the relief sought, in whole or in part, but in making its decision the Agency must be satisfied, after considering the circumstances of the particular case, that the applicant would suffer substantial commercial harm if the relief were not granted.

Circumstances

(3) The circumstances to be considered by the Agency in making its decision under subsection (2) may include, but are not limited to, the following:

Amendments

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

No applicability to final offer arbitration

(5) This section does not apply in respect of final offer arbitration under Part IV.

Orders

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

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.

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.

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.

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.

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.

Fact finding is conclusive

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

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.

Enforcement of decision or order

33. (1) A decision or an order of the Agency may be made an order of any superior court and is enforceable in the same manner as such an order.

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.

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.

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.

Fees

34. (1) The Agency may, by rule, fix the fees that are to be paid to the Agency in respect of applications made to it, including applications for licences or permits and applications for amendments to or for the renewal of licences or permits, and any other matters brought before or dealt with by the Agency.

Advance notice to Minister

(2) The Agency shall give the Minister notice of every rule proposed to be made under subsection (1).

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.

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.

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.

Inquiries

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.

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.

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.

Powers on inquiry

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

Review and Appeal

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.

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.

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.

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.

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

Report of Agency

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

Assessment of Act

(2) The Agency shall include in every report referred to in subsection (1) the Agency's assessment of the operation of this Act and any difficulties observed in the administration of this Act.

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

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.

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.

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.

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.

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

Governor in Council may prevent disruptions

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

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.

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.

Order is temporary

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

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.

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.

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.

Competition Act

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

Offence

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

for each day the person contravenes the order.

Minister

Support Agreements

Support agreements

48. The Minister may, with the approval of the Governor in Council and on the terms and conditions that the Governor in Council may specify, enter into agreements in support of the national transportation policy set out in section 5 or in respect of any transportation matter that the Minister considers appropriate.

Inquiries

Minister may request inquiry

49. 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.

Transportation Information

Regulations re information

50. (1) The Minister may, with the approval of the Governor in Council, make regulations requiring carriers or transportation or grain handling undertakings to which the legislative authority of Parliament extends to provide information to the Minister, when and in the form and manner that the regulations may specify, for the purposes of

Information to be provided

(2) Information required to be provided under subsection (1) may include the following:

Restriction

(3) No regulation made under subsection (1) shall require or have the effect of requiring any person to provide the Minister 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.

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.

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.

Exemptions

(4) The Minister may exempt a carrier or transportation undertaking from the application of all or any part of a regulation made under subsection (1) if the Minister is satisfied that is it not practicable for the carrier or transportation undertaking to provide the information.

Consultations

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

Confidentiality of information

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

Administrative use of information

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

Safe and secure procedures

(3) The Minister shall ensure that the procedures and physical measures taken to ensure the confidentiality of information provided to the Minister pursuant to this Act, including the keeping of electronic data, are safe and secure.

Industry Review

Industry review

52. (1) Each year the Minister shall, before the end of May, lay before Parliament a report briefly reviewing the state of transportation in Canada in respect of the preceding year, including

First year

(2) Subsection (1) does not apply in respect of the year in which this Act comes into force if this Act was not in force for more than four months in that year.

Review of Act

Statutory review

53. (1) The Minister shall, no later than four years after the day this Act 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 and transportation activities under the legislative authority of Parliament.

Objective of review

(2) The person or persons conducting the review shall assess whether the legislation referred to in subsection (1) provides Canadians with an efficient, effective, flexible and affordable transportation system, and, where necessary or desirable, recommend amendments to

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.

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.

Report

(5) The review shall be completed and a report of the review submitted to the Minister within one year after the appointment referred to in subsection (1).

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.

General

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.

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 II

AIR TRANSPORTATION

Interpretation and Application

Definitions

55. (1) In this Part,

"aircraft"

« aéronef »

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

"air service"

« service aérien »

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

"basic fare"

« prix de base »

"basic fare" means

"Canadian"

« Canadien »

"Canadian" means a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, a government in Canada or an agent of such a government or a corporation or other 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 seventy-five per cent, or such lesser percentage as the Governor in Council may by regulation specify, of the voting interests are owned and controlled by Canadians; 

"Canadian aviation document"

« document d'aviation canadien »

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

"domestic licence"

Version anglaise seulement

"domestic licence" means a licence issued under section 61;

"domestic service"

« service intérieur »

"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;

"international service"

« service international »

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

"licensee"

« licencié »

"licensee" means the holder of a licence issued by the Agency under this Part;

"non-scheduled international licence"

Version anglaise seulement

"non-scheduled international licence" means a licence issued under subsection 73(1);

"non-scheduled international service"

« service international à la demande »

"non-scheduled international service" means an international service other than a scheduled international service;

"prescribed"

« règlement »

"prescribed" means prescribed by regulations made under section 86;

"scheduled international licence"

Version anglaise seulement

"scheduled international licence" means a licence issued under subsection 69(1);

"scheduled international service"

« service international régulier »

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

"tariff"

« tarif »

"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.

(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.

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.

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).

Non-application of Part

56. (1) This Part does not apply to aircraft that are used by the Canadian Armed Forces or by any other armed forces cooperating with the Canadian Armed Forces and that bear the insignia or markings of the Canadian Armed Forces or those other armed forces.

Specialty service exclusion

(2) This Part does not apply to the operation of an air flight training service, aerial inspection service, aerial construction service, aerial photography service, aerial forest fire management service, aerial spraying service or any other prescribed air service.

Review of Mergers and Acquisitions

Notice

56.1 (1) Every person who is required to notify the Commissioner under subsection 114(1) of the Competition Act in respect of a transaction that involves an air transportation undertaking shall give notice, containing, subject to the regulations, the information required under that subsection, of the transaction to the Minister and the Agency, when notice is given to the Commissioner and, in any event, no later than when the person is required to notify the Commissioner.

Minister's determination

(2) If the Minister is of the opinion that the transaction does not raise concerns 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.

When sections 56.2 and 56.3 do not apply

(3) Sections 56.2 and 56.3 do not apply in respect of the transaction if the Minister gives notice under subsection (2).

Definition of  "Commissioner"

(4) In this section and sections 56.2, 56.4 and 56.5, "Commissioner" has the same meaning as in subsection 2(1) of the Competition Act.

Prohibition

56.2 (1) No person shall complete a transaction referred to in subsection 56.1(1) unless the Agency determines that the transaction would result in an air transportation undertaking that is Canadian and the transaction is approved by the Governor in Council.

Commissioner 's report

(2) The Commissioner shall, as soon as feasible, 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.

Minister to inform re concerns

(3) After receiving the Commissioner's report and before the Minister makes a recommendation for the purposes of subsection (6), the Minister shall inform the Commissioner and the parties to the transaction

(a) of any national transportation concerns that the Minister has in respect of the transaction; and

(b) of which of the Commissioner's concerns the Minister believes the parties should address with the Commissioner.

Measures to address concerns

(4) After conferring with the Minister and the Commissioner, the parties to the transaction shall inform the Minister and the Commissioner of any measures they are prepared to undertake to address the Minister's and the Commissioner's concerns and may propose revisions to the transaction.

Precondition to recommendation

(5) Before making a recommendation for the purposes of subsection (6), the Minister shall obtain the Commissioner's assessment of the adequacy of any undertaking proposed by the parties to address the Commissioner's concerns and the effects on those concerns of any proposed revisions to the transaction.

Approval of Governor in Council

(6) If the Governor in Council is satisfied that it is in the public interest to approve the transaction, taking into account any revisions to it proposed by the parties and measures they are prepared to undertake, the Governor in Council may, by order made on the recommendation of the Minister, approve the transaction and specify any terms and conditions that the Governor in Council considers appropriate. The order shall indicate which of the terms and conditions relate to potential prevention or lessening of competition and which relate to national transportation concerns.

Variation of terms and conditions

(7) On application by a person who is subject to terms and conditions specified in an order, the Governor in Council may, on the recommendation of the Minister, vary or rescind the terms and conditions. If the terms and conditions to be varied or rescinded affect competition, the Minister shall consult with the Commissioner before making the recommendation.

Commissioner 's representations

(8) If the Minister directs the Agency under section 49 to inquire into any matter or thing to assist the Minister in making the recommendation under subsection (6) or (7), the Agency shall give notice of the inquiry to the Commissioner and allow the Commissioner to make representations to the Agency.

Compliance with terms and conditions

(9) Every person subject to terms and conditions specified in an order shall comply with them.

Canadian

56.3 The Agency shall determine whether a transaction referred to in section 56.1 would result in an air transportation undertaking that is Canadian.

Substantial or complete control over domestic services

56.4 (1) If the Governor in Council is of the opinion that a licensee and its affiliated licensees have, after October 26, 1999, acquired or are about to acquire substantial or complete control over domestic services, otherwise than as a result of a transaction approved under section 56.2, the Governor in Council may, by order made on the recommendation of the Minister, direct the licensee or the affiliated licensees to take any action that the Governor in Council considers reasonable and necessary to protect the public interest from the consequences of that control, including requiring the divestiture of assets.

Precondition to recommendation

(2) The Minister shall not make a recommendation under subsection (1) unless the Minister has obtained the Commissioner's assessment of the state of competition in the domestic airline industry.

Variation or rescission

(3) On application by a person who is subject to an order made under subsection (1) and on the recommendation of the Minister, the Governor in Council may, by order, vary or rescind the order. If the order to be rescinded or varied affects competition, the Minister shall consult with the Commissioner before making the recommendation.

Order of divestiture - application by Minister

56.5 (1) If a person contravenes subsection 56.2(1), subsection 56.2(9) with respect to a term or condition that relates to national transportation concerns or an order made under subsection 56.4(1), on application by the Minister, a superior court may 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 before making an application.

Order of divestiture - application by Commissioner

(2) If a person contravenes subsection 56.2(9) with respect to a term or condition that relates to potential prevention or lessening of competition, on application by the Commissioner, a superior court may order the person to cease the contravention or do any thing that is required to be done, and may make any other order that it considers appropriate, including an order requiring the divestiture of assets. The Commissioner shall notify the Minister before making an application.

Regulations

56.6 The Governor in Council may, on the recommendation of the Minister, make regulations

(a) specifying information required in a notice under subsection 56.1(1); and

(b) exempting classes of transactions from the application of sections 56.1 to 56.3.

Offence - subsection 56.1(1)

56.7 (1) Every person who contravenes subsection 56.1(1) is guilty of an offence and is liable

(a) on summary conviction, to a fine of not more than $25,000; or

(b) on conviction on indictment, to a fine of not more than $50,000.

Offence - subsection 56.2(1) or (9)

(2) Every person who contravenes subsection 56.2(1) or (9) or an order made under subsection 56.4(1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or to a fine not exceeding $10,000,000 or to both.

Continuing offence

(3) If an offence under subsection (2) is committed or continued on more than one day, the person who commits it is liable to be convicted for a separate offence for each day on which it is committed or continued.

Officers, etc., of corporations

(4) If a corporation commits an offence under subsection (1) or (2), any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence whether or not the corporation has been prosecuted or convicted.

Sections 174 and 175 do not apply

(5) Sections 174 and 175 do not apply in respect of an offence committed under subsection (1) or (2).

Prohibitions

Prohibition re operation

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

Licence not transferable

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

Prohibition re sale

59. No person shall sell, cause to be sold or publicly offer for sale in Canada an air service unless, where required under this Part, the person holds a licence issued under this Part in respect of that service.

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

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

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

Qualification exemption

62. 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.

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).

Discretionary suspension or cancellation

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

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.

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.

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.

Discussion with elected officials

(1.2) A licensee shall, as soon as practicable after giving notice under subsection (1) or (1.1), 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.

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.

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.

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

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.

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.

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 shall consider

(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 using similar aircraft, including terms and conditions of carriage and, in the case of fares, the number of seats available at those fares;

(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 that may be provided by the licensee, including information that the licensee provides under section 83.

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 opinion of the Agency, 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.

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.

Finding on the Agency's own motion

(6) The Agency may make a finding under subsection (1) or (2) on its own motion within two years after the date that this subsection comes into force. The Governor in Council may, by order, extend for a maximum of two years the period within which the Agency may make a finding on its own motion.

Informing the Agency

(7) During the period during which the Agency may make a finding under subsection (6), every licensee operating a domestic service between two points in accordance with a published timetable or on a regular basis shall

(a) keep the Agency informed of its existing tariffs in respect of that service in the form and manner that the Agency may specify; and

(b) on request, inform the Agency of the tariffs it applied in respect of any of its domestic services during the previous three years and provide the Agency with any information that the Agency considers necessary for the purposes of subsection (6) and that is in support of those tariffs or related to the passenger seating or cargo capacity offered or proposed to be offered in relation to the fares or cargo rates set out in those tariffs.

Confidentiality of information

(8) The Agency may take any measures or make any order that it considers necesssary 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.

Tariffs to be made public

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

Prescribed tariff information to be included

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

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.

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.

Fares or rates not set out in tariff

67.1 If, on complaint in writing to the Agency by any person or on its own motion, the Agency finds that, contrary to subsection 67(3), the holder of a domestic licence has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may order the licensee to

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

(b) compensate any person adversely affected for any expenses they incurred as a result of the licensee's failure to apply a fare, rate, charge or term or condition of carriage that was set out in its tariffs; and

(c) take any other appropriate corrective measures.

When unreasonable or unduly discriminatory terms or conditions

67.2 (1) If, on complaint in writing to the Agency by any person, 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.

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.

Non-application of fares, etc.

68. (1) Sections 66, 67, 67.1 and 67.2 do not apply in respect of fares, rates, charges or terms and conditions of carriage 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.

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.

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

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

Eligibility of Canadians

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

Eligibility of non-Canadians

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

Determination of scheduled international service

70. The Minister may, in writing to the Agency,

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.

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.

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).

Discretionary suspension or cancellation

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

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

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

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

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.

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.

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

Discretionary suspension or cancellation

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

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.

Ministerial Directions for International Service

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,

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.

Nature of directions

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

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

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.

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.

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.

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.

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

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

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.

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.

Licensee to provide notification

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

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.

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.

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.

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.

Air Travel Complaints Commissioner

Designation

85.1 (1) The Minister shall designate a temporary member to act as the Air Travel Complaints Commissioner for the purposes of this section.

Filing of complaints

(2) A person shall file in writing with the Air Travel Complaints Commissioner a complaint against a licensee in respect of its air service if the person made the complaint to the licensee and the complaint was not resolved to the person's satisfaction.

Review and mediation

(3) The Commissioner, or a person authorized to act on the Commissioner's behalf, shall review and attempt to resolve every complaint filed under subsection (2) for which no other remedy exists and may, if appropriate, mediate or arrange for the mediation of a complaint filed under that subsection.

Production of documents

(4) On request by the Commissioner or a person authorized to act on the Commissioner's behalf, a person shall produce for examination by the Commissioner any document, record or thing that is in the possession or under the control of the person and is, in the opinion of the Commissioner, relevant to a complaint.

Report to parties

(5) The Commissioner or a person authorized to act on the Commissioner's behalf shall provide to the parties a report that outlines their positions and any settlement that they reached.

Publicly available report

(6) The Commissioner shall, at least semi-annually, prepare a report to the Governor in Council through the Minister setting out the number and nature of complaints filed under subsection (2), including the names of the licensees against whom the complaints were made and describing the manner in which they were dealt with and any systemic problems observed. The Agency shall include the Commissioner's reports in its annual report.

Regulations

Regulations

86. (1) The Agency may make regulations

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

(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, and

(iii) authorizing the Agency to direct a licensee to take corrective measures that the Agency considers appropriate and to pay compensation for any expense incurred by a person adversely affected by the licensee's failure to apply the fares, rates, charges or terms or conditions of carriage applicable to the service it offers that were set out in its tariffs;

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.

Regulations and orders

(3) 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 III

RAILWAY TRANSPORTATION

DIVISION I

INTERPRETATION AND APPLICATION

Definitions

87. In this Part,

"land"

« terres »

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

"operate"

« exploitation »

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

"point of destination"

« point de 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 129(2), 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 of origin"

« point d'origine »

"point of origin" means, with respect to traffic on a railway line that is subject to a transfer described in subsection 128(4) or 129(2), the point where the traffic is transferred to the line of a railway company from a line to which this Part does not apply;

"railway"

« chemin de fer »

"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;

"railway company"

« compagnie de chemin de fer »

"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);

"road" « route »

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

"Special Act" « loi spéciale »

"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

"tariff"

« tarif »

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

"traffic"

« transport » ou « trafic »

"traffic" means the traffic of goods, including equipment required for their movement.

Application

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

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.

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.

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).

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 II

CONSTRUCTION AND OPERATION OF RAILWAYS

Certificate of Fitness

Certificate required

90. (1) No person shall construct or operate a railway without a certificate of fitness.

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

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.

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.

Issuance of certificate of fitness

92. (1) The Agency shall issue a certificate of fitness for the proposed construction or operation of a railway if the Agency is satisfied that there will be adequate liability insurance coverage for the proposed construction or operation, as determined in accordance with the regulations.

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.

Regulations

(3) The Agency may make regulations for determining the adequacy of liability insurance coverage, including self-insurance.

Variation of certificate

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

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.

Notice of insurance changes

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

Suspension or cancellation

(2) The Agency may suspend or cancel the certificate if it determines that the liability insurance coverage is no longer adequate.

General Powers of Railway Companies

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:

Minimal damage

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

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.

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.

Land Transfer

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.

Alienation to other persons

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

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.

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.

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.

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

No construction without Agency approval

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

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.

Exception

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

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.

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.

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

Definitions

100. In this section and section 101,

"road crossing"

« franchissement routier »

"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;

"utility crossing"

« franchissement par desserte »

"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;

"utility line"

« desserte »

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

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.

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.

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.

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.

Non-application of section

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

Private Crossings

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.

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.

Terms and conditions

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

Costs of construction and maintenance

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

DIVISION III

FINANCIAL TRANSACTIONS OF RAILWAY COMPANIES

Mortgages and Hypothecs

Deposit and notice of mortgage or hypotheque

104. (1) A mortgage or hypothec issued by a railway company, or an assignment or other document affecting the mortgage or hypothec, may be deposited in the office of the Registrar General of Canada, and notice of the deposit must be published in the Canada Gazette without delay.

Other filing, deposit or registration not necessary

(2) The mortgage or hypothec, assignment or other document need not be deposited, registered or filed under any other law or statute respecting real or personal property if it has been deposited and a notice has been published in accordance with subsection (1).

Documents Dealing with Rolling Stock

Deposit of documents

105. (1) A document, or a copy or summary of a document, evidencing any of the following transactions may be deposited in the office of the Registrar General of Canada:

Contents of summary

(2) A summary of a document must include any information that the Governor in Council may prescribe by regulation.

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.

Notice of deposit

(4) Notice of the deposit must be published in the Canada Gazette without delay.

Insolvent Railway Companies

Scheme may be filed in Federal Court

106. (1) If a railway company is insolvent, the directors may prepare a scheme of arrangement between the company and its creditors and may file it in the Federal Court.

May affect shareholders and capital

(2) The scheme may include provisions for settling and defining any rights of shareholders of the railway company as among themselves and for raising additional share and loan capital, if necessary.

Documents to be filed

(3) There must be filed with the scheme

Federal Court may restrain action

(4) After the scheme is filed, the Federal Court may, on the application of the railway company, restrain any action against the company on any terms that the Federal Court considers appropriate.

Limitation

(5) No order of the Federal Court or any other court restraining action against the railway company affects the right of any person to take possession of the rolling stock of the company as a creditor under a security agreement, bailment, mortgage or hypothec or as a lessor or conditional vendor, whether as trustee or otherwise, unless

Extension of 60 day period

(6) An extension of the 60 day period under paragraph (5)(a) does not prejudice the right to take possession of the rolling stock.

Assent to scheme

107. (1) The scheme is assented to when it is both assented to by the ordinary shareholders of the railway company at a special meeting called for that purpose and assented to in writing by three quarters in value of the holders of

Assent of lessor

(2) If the railway company leases a railway from another company, the scheme is assented to by the other company when it is assented to

No assent required from class not interested

(3) Assent to the scheme is not required by a class of holders mentioned in subsection (1) or another company mentioned in subsection (2) if the scheme does not prejudicially affect any right or interest of that class or company.

Application for confirmation of scheme

108. (1) The directors of the railway company may apply to the Federal Court for confirmation of the scheme if, at any time within three months after the scheme is filed, or within any extended time that the Federal Court may allow, the directors consider the scheme to be assented to in accordance with section 107.

Notice of application

(2) Notice of the application must be published in the Canada Gazette.

Confirmation of Federal Court

(3) The Federal Court, after hearing the directors and any other persons whom it considers entitled to be heard on the application, may confirm the scheme, if it is satisfied that

Registration in Federal Court

(4) When the scheme is confirmed, it shall be registered in the Federal Court, and from then on it is binding on the company and all persons.

Notice

(5) Notice of the confirmation and registration of the scheme must be published in the Canada Gazette.

Rules of practice

109. The judges of the Federal Court may, with the approval of the Governor in Council, make general rules governing the practice and procedure of the Court under sections 106 to 108.

Copies of the scheme to be kept for sale

110. The railway company shall keep at its principal or head office printed copies of the scheme when confirmed and registered, and shall provide a copy to any person who requests one and pays a fee not exceeding the cost of making the copy.

DIVISION IV

RATES, TARIFFS AND SERVICES

Interpretation

Definitions

111. In this Division,

"competitive line rate"

« prix de ligne concurrentiel »

"competitive line rate" means a rate determined with respect to a shipper in accordance with section 133;

"confidential contract"

« contrat confidentiel »

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

"connecting carrier"

« transporteur de liaison »

"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 in respect of which the railway company and the shipper agree on the movement of the traffic, including the applicable rate;

"interchange"

« lieu de correspondence »

"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;

"interswitch"

« interconnexion »

"interswitch" means to transfer traffic from the lines of one railway company to the lines of another railway company in accordance with regulations made under section 128;

"interswitching rate"

Version anglaise seulement

"interswitching rate" means a rate established by, or determined in accordance with, regulations made under paragraph 128(1)(b);

"local carrier"

« transporteur local »

"local carrier" means a railway company 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 railway company;

"service obligations"

Version anglaise seulement

"service obligations" means obligations under section 113 or 114.

Rates and Conditions of Service

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

Accommodation for traffic

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

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.

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.

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.

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.

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

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

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,

Adequate and suitable accommodation

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

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

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.

Competitive line rate provisions binding on Agency

(3) If a shipper and a company agree under subsection 136(4) on the manner in which the service obligations are to be fulfilled by the local carrier, the terms of the agreement are binding on the Agency in making its determination.

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;

(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.

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.

Company not relieved

(6) Subject to the terms of a confidential contract referred to in subsection 113(4) or a tariff setting out a competitive line rate referred to in subsection 136(4), 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.

Tariffs-General

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.

Tariff to include prescribed information

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

Publication of tariff

(3) The railway company shall publish and either publicly display the tariff or make it available for public inspection at its offices.

Copy of tariff on payment of fee

(4) The railway company shall provide a copy of the tariff, or any portion of it, to any person who requests it and pays a fee not exceeding the cost of making the copy.

Record of tariff

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

Tariffs-Freight

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.

Increasing rates in freight tariff

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