2nd Session, 36th Parliament,
48-49 Elizabeth II,
1999-2000
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| The House of Commons of Canada
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BILL C-34
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An Act to amend the Canada Transportation Act
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Her Majesty, by and with the advice and consent of the
Senate and House of Commons of Canada, enacts as follows:
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| 1996, c. 10
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1. (1) Subsection 50(1) of the
Canada Transportation Act is amended by striking out the word
"or" at the end of paragraph (e) and by adding the following
after paragraph (e):
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(e.1) monitoring the grain transportation and
handling system; or
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(2) Section 50 of the Act
is amended by adding the following after subsection (3):
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| Limitation
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(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.
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| Report on the monitoring of the grain transportation and
handling system
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(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
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(a) makes a regulation under paragraph
(1)(e.1), and
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(b) uses or communicates the information provided
under the regulation for the purpose of monitoring the grain
transportation and handling system.
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2. Subsection 51(2) of the
Act is amended by striking out the word "or" at the end of paragraph
(a), by adding the word "or" at the end of paragraph (b)
and by adding the following after paragraph (b):
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(c) the communication of information by the
Minister for the purpose of monitoring the grain transportation and
handling system.
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3. Subsection 93(2) of the
Act is replaced by the following:
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| Variation when running rights granted
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(2) The Agency may vary a certificate of fitness when it
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(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
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(b) grants a right under section 138 to the
holder of the certificate.
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4. Subsection 116(4) of
the Act is amended by striking out the word "or" at the end of paragraph
(b) and by adding the following after paragraph
(c):
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(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
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(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
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(i) to run and operate its trains over and on any portion
of the line, and
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(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.
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5. (1) Subsection 141(1)
of the Act is replaced by the following:
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| Three-year plan
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141. (1) A railway company shall prepare
and keep up to date a plan indicating for each of its railway lines
whether it intends to continue to operate the line or whether, within the
next three years, it intends to take steps to discontinue operating the
line.
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(2) Subsection 141(3) of
the Act is replaced by the following:
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| When sale, etc., permitted
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(3) A railway company may sell, lease or otherwise
transfer its railway lines, or its operating interest in its lines, for
continued operation.
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| Continued operation of a portion of a line
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(4) A railway company that sells, leases or otherwise
transfers a portion of a grain-dependent branch line listed in Schedule I,
or its operating interest in such a portion, to a person who intends to
operate the portion shall continue to operate the remaining portion for
three years, unless the Minister determines that it is not in the public
interest for the company to do so.
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6. Section 142 of the Act
is replaced by the following:
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| Compliance with steps for discontinuance
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142. (1) A railway company shall comply
with the steps described in this Division before discontinuing operating a
railway line.
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| Limitation
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(2) A railway company shall not take steps to discontinue
operating a railway line before the company's intention to discontinue
operating the line has been indicated in its plan for at least 12 months.
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| Community-based groups
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(3) Subsection (2) does not apply and a railway company
shall without delay take the steps described in section 143 if
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(a) the federal government, a provincial,
municipal or district government or a community-based group endorsed in
writing by such a government has written to the company to express an
interest in acquiring all or a portion of a grain-dependent branch line
that is listed in Schedule I for the purpose of continuing to operate that
line or portion of a line; and
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(b) that line or portion of a line is indicated
on the company's plan as being a line or a portion of a line that the
company intends to take steps to discontinue operating.
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7. Subsections 144(3) to
(5) of the Act are replaced by the following:
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| Negotiation in good faith
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(3) The railway company shall negotiate with an interested
person in good faith and in accordance with the process it discloses and
the interested person shall negotiate with the company in good faith.
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| Net salvage value
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(3.1) The Agency may, on application by a party to a
negotiation, determine the net salvage value of the railway line and may,
if it is of the opinion that the railway company has removed any of the
infrastructure associated with the line in order to reduce traffic on the
line, deduct from the net salvage value the amount that the Agency
determines is the cost of replacing the removed infrastructure. The party
who made the application shall reimburse the Agency its costs associated
with the application.
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| Time limit for agreement
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(4) The railway company has six months to reach an
agreement after the final date stated in the advertisement for persons to
make their interest known.
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| Decision to continue operating a railway line
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(5) If an agreement is not reached within the six months,
the railway company may decide to continue operating the railway line, in
which case it is not required to comply with section 145, but shall amend
its plan to reflect its decision.
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| Remedy if bad faith by a railway company
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(6) If, on complaint in writing by the interested person,
the Agency finds that the railway company is not negotiating in good faith
and the Agency considers that a sale, lease or other transfer of the
railway line, or the company's operating interest in the line, to the
interested person for continued operation would be commercially fair and
reasonable to the parties, the Agency may order the railway company to
enter into an agreement with the interested person to effect the transfer
and with respect to operating arrangements for the interchange of traffic,
subject to the terms and conditions, including consideration, specified by
the Agency.
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| Remedy if bad faith by an interested person
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(7) If, on complaint in writing by the railway company,
the Agency finds that the interested person is not negotiating in good
faith, the Agency may order that the railway company is no longer required
to negotiate with the person.
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8. The Act is amended by
adding the following after section 146:
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| Compensation
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146.1 A railway company that discontinues
operating a grain-dependent branch line listed in Schedule I, or a portion
of one, that is in a municipality or district shall, commencing on the
date on which notice was provided under subsection 146(1), make three
annual payments to the municipality or district in the amount equal to
$10,000 for each mile of the line or portion in the municipality or
district.
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9. (1) The definitions
"joint line movement" and "maximum rate scale" in section 147 of the Act
are repealed.
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(2) The definition "prescribed railway company" in
section 147 of the Act is replaced by the following:
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"prescribed railway company"
« compagnie de chemin
de fer régie »
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"prescribed railway company" means the Canadian National
Railway Company, the Canadian Pacific Railway Company and any railway
company that may be specified in the regulations;
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(3) Section 147 of the Act
is amended by adding the following in alphabetical order:
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"government hopper car"
« wagon-trémi e du
gouvernement »
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"government hopper car" means a hopper car provided to a
prescribed railway company by the government of Canada or a province or by
the Canadian Wheat Board;
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| 1996, c. 18, s. 41
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10. The heading before section 149 and
sections 149 to 155 of the Act are replaced by the following:
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Tariffs
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| Issuance and publication
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149. (1) A prescribed railway company
shall issue and publish tariffs that include single car rates in respect
of the movement of grain from each grain delivery point on its railway.
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| Prohibition
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(2) No prescribed railway company shall establish a single
car rate in a tariff in respect of the movement of grain from a grain
delivery point on one of its branch lines that is more than three per cent
higher than any single car rate in its tariffs for the movement of the
same type of grain under substantially similar conditions for a
substantially similar distance from the grain delivery point on one of its
main lines that is nearest, as measured in a straight line, to the grain
delivery point on the branch line.
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Maximum Grain Revenue Entitlement
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| Ceiling
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150. (1) A prescribed railway company's
revenues, as determined by the Agency, for the movement of grain in a crop
year may not exceed the company's maximum revenue entitlement for that
year as determined under subsection 151(1).
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| Payment of excess and penalty
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(2) If a prescribed railway company's revenues, as
determined by the Agency, for the movement of grain in a crop year exceed
the company's maximum revenue entitlement for that year as determined
under subsection 151(1), the company shall pay out the excess amount, and
any penalty that may be specified in the regulations, in accordance with
the regulations.
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| Items not included in revenue
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(3) For the purposes of this section, a prescribed railway
company's revenue for the movement of grain in a crop year shall not
include
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(a) incentives, rebates or any similar reductions
paid or allowed by the company;
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(b) any amount that is earned by the company and
that the Agency determines is reasonable to characterize as a performance
penalty or as being in respect of demurrage or for the storage of railway
cars loaded with grain; or
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(c) compensation for running rights.
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| Impermissible reductions
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(4) For the purposes of this section, a prescribed railway
company's revenue for the movement of grain in a crop year shall not be
reduced by amounts paid or allowed as dispatch by the company for loading
or unloading grain before the expiry of the period agreed on for loading
or unloading the grain.
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| Reductions from revenue
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(5) For the purposes of this section, if the Agency
determines that it was reasonable for a prescribed railway company to make
a contribution for the development of grain-related facilities to a grain
handling undertaking that is not owned by the company, the company's
revenue for the movement of grain in a crop year shall be reduced by any
amount that the Agency determines constitutes the amortized amount of the
contribution by the company in the crop year.
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| Agency to determine revenue
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(6) The Agency shall make the determination of a
prescribed railway company's revenues for the movement of grain in a crop
year on or before December 31 of the following crop year.
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| Maximum revenue entitlement
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151. (1) A prescribed railway company's
maximum revenue entitlement for the movement of grain in a crop year is
the amount determined by the Agency in accordance with the formula
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[A/B + ((C - D) x $0.022)] x E x F
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where
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A is the company's revenues for the movement of grain in
the base year;
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B is the number of tonnes of grain involved in the
company's movement of grain in the base year;
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C is the number of miles of the company's average length
of haul for the movement of grain in that crop year as determined by the
Agency;
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D is the number of miles of the company's average length
of haul for the movement of grain in the base year;
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E is the number of tonnes of grain involved in the
company's movement of grain in the crop year as determined by the Agency;
and
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F is the volume-related composite price index as
determined by the Agency.
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| Canadian National Railway Company
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(2) For the purposes of subsection (1), in the case of the
Canadian National Railway Company,
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(a) A is $348,000,000;
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(b) B is 12,437,000; and
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(c) D is 1,045.
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| Canadian Pacific Railway Company
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(3) For the purposes of subsection (1), in the case of the
Canadian Pacific Railway Company,
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(a) A is $362,900,000;
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(b) B is 13,894,000; and
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(c) D is 897.
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| Volume-related composite price index
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(4) The following rules are applicable to the
volume-related composite price index:
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(a) in the crop year 2000-2001, the index is
deemed to be 1.0;
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(b) the index applies in respect of all of the
prescribed railway companies; and
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(c) the Agency shall make adjustments to the
index to reflect the incremental costs incurred by the prescribed railway
companies for the purpose of obtaining cars as a result of the sale, lease
or other disposal or withdrawal from service of government hopper
cars.
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| When Agency to make determination
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(5) The Agency shall make the determination of a
prescribed railway company's maximum revenue entitlement for the movement
of grain in a crop year under subsection (1) on or before December 31 of
the following crop year and shall make the determination of the
volume-related composite price index on or before April 30 of the previous
crop year.
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Regulations
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| Regulations
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152. The Governor in Council may make
regulations
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(a) specifying railway companies for the purposes
of the definition "prescribed railway company" in section 147;
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(b) specifying, in respect of a prescribed
railway company other than the Canadian National Railway Company or the
Canadian Pacific Railway Company,
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(i) revenues for the movement of grain in the base
year,
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(ii) the number of tonnes for the movement of grain in the
base year, and
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(iii) the average length of haul for the movement of grain
in the base year;
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(c) specifying a penalty for the purposes of
subsection 150(2) and respecting the paying out of the penalty and the
excess amount; and
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(d) for carrying out the purposes and provisions
of this Division.
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11. (1) Subsection 161(1) of the Act is replaced
by the following:
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| Submission for final offer arbitration
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161. (1) A shipper who is dissatisfied
with the rate or rates charged or proposed to be charged by a carrier for
the movement of goods, or with any of the conditions associated with the
movement of goods, may, if the matter cannot be resolved between the
shipper and the carrier, submit the matter in writing to the Agency for a
final offer arbitration to be conducted by one arbitrator or, if the
shipper and the carrier agree, by a panel of three arbitrators.
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(2) Paragraphs 161(2)(a) and (b)
of the Act are replaced by the following:
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(a) the final offer of the shipper to the carrier
in the matter, excluding any dollar amounts;
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(3) Paragraph 161(2)(e) of the Act is
replaced by the following:
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(e) the name of the arbitrator, if any, that the
shipper and the carrier agreed should conduct the arbitration or, if they
agreed that the arbitration should be conducted by a panel of three
arbitrators, the name of an arbitrator chosen by the shipper and the name
of an arbitrator chosen by the carrier.
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12. The Act is amended by adding the following
after section 161:
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| Submission of final offers
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161.1 (1) Within 10 days after a
submission is served under subsection 161(2), the shipper and the carrier
shall submit to the Agency their final offers, including dollar amounts.
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| Copies to the parties
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(2) Without delay after final offers are submitted under
subsection (1) by both the shipper and the carrier, the Agency shall
provide the shipper and the carrier with copies of each other's final
offer.
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| If no final offer from a party
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(3) If one party does not submit a final offer in
accordance with subsection (1), the final offer submitted by the other
party is deemed to be the final offer selected by the arbitrator under
subsection 165(1).
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13. Subsection 162(1) of the Act is replaced by
the following:
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| Arbitration
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162. (1) Notwithstanding any application
filed with the Agency by a carrier in respect of a matter, within five
days after final offers are received under subsection 161.1(1), the Agency
shall refer the matter for arbitration
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(a) if the parties did not agree that the
arbitration should be conducted by a panel of three arbitrators, to the
arbitrator, if any, named under paragraph 161(2)(e) or, if that
arbitrator is not, in the opinion of the Agency, available to conduct the
arbitration or no arbitrator is named, to an arbitrator on the list of
arbitrators referred to in section 169 who the Agency chooses and
determines is appropriate and available to conduct the arbitration;
and
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(b) if the parties agreed that the arbitration
should be conducted by a panel of three arbitrators,
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(i) to the arbitrators named by the parties under
paragraph 161(2)(e) and to any arbitrator who those arbitrators
have, within 10 days after the submission was served under subsection
161(2), notified the Agency that they have agreed on, or if those
arbitrators did not so notify the Agency, to an arbitrator on the list of
arbitrators referred to in section 169 who the Agency chooses and
determines is appropriate and available to conduct the arbitration,
or
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(ii) if an arbitrator referred to in subparagraph (i) is
not, in the opinion of the Agency, available to conduct the arbitration,
to the arbitrators named in that subparagraph who are available and to an
arbitrator chosen by the Agency from the list of arbitrators referred to
in section 169 who the Agency determines is appropriate and available to
conduct the arbitration.
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| Interpretation
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(1.1) If a matter was referred to a panel of arbitrators,
every reference in subsections (1.2) and (2) and sections 163 to 169 to an
arbitrator or the arbitrator shall be construed as a reference to a panel
of arbitrators or the panel of arbitrators, as the case may be.
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| Delay in referral
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(1.2) If the shipper consents to an application referred
to in subsection (1) being heard before the matter is referred to an
arbitrator, the Agency shall defer referring the matter until the
application is dealt with.
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14. The Act is amended by adding the following
after section 162:
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| Decision or order affecting a matter being arbitrated
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162.1 The Agency may, in addition to any
other decision or order it may make, order that an arbitration be
discontinued, that it be continued subject to the terms and conditions
that the Agency may fix or that the decision of the arbitrator be set
aside if
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(a) the Agency makes a decision or an order
arising out of an application that is in respect of a matter submitted to
the Agency for a final offer arbitration and that is filed by a carrier
before the matter is referred to arbitration; and
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(b) the decision or order affects the
arbitration.
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15. The Act is amended by adding the following
after section 164:
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| Summary process
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164.1 If the Agency determines that a
shipper's final offer submitted under subsection 161.1(1) involves freight
charges in an amount of not more than $750,000 and the shipper did not
indicate a contrary intention when submitting the offer, sections 163 and
164 do not apply and the arbitration shall proceed as follows:
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(a) within seven days after a matter is referred
to an arbitrator, the shipper and the carrier may file with the arbitrator
a response to the final offer of the other party;
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(b) subject to paragraph (c), the
arbitrator shall decide the matter on the basis of the final offers and
any response filed under paragraph (a); and
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(c) if the arbitrator considers it necessary, the
arbitrator may invite the parties to make oral representations or may ask
the parties to appear before him or her to provide further
information.
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16. (1) Subsection 165(1) of the Act is replaced
by the following:
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| Decision of arbitrator
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165. (1) The decision of the arbitrator
in conducting a final offer arbitration shall be the selection by the
arbitrator of the final offer of either the shipper or the carrier.
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(2) Paragraph 165(2)(b) of the Act is
replaced by the following:
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(b) unless the parties agree otherwise, be
rendered within 60 days or, in the case of an arbitration conducted in
accordance with section 164.1, 30 days after the date on which the
submission for the final offer arbitration was received by the Agency;
and
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(3) Subsection 165(5) of the Act is replaced by
the following:
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| Reasons may be requested
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(5) The arbitrator shall, if requested by all of the
parties to the arbitration within 30 days or, in the case of an
arbitration conducted in accordance with section 164.1, seven days after
the decision of the arbitrator, give written reasons for the decision.
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17. Subsection 169(1) of the Act is replaced by
the following:
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| List of arbitrators
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169. (1) The Agency shall, from time to
time, in consultation with representatives of shippers and carriers,
establish a list of persons who agree to act as arbitrators in final offer
arbitrations. The list must state which of the persons have indicated that
they have expertise that may assist them in conducting final offer
arbitrations and the nature of that expertise.
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18. Schedule I to the Act is replaced by the
schedule set out in the schedule to this Act.
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19. Schedules III and IV to the Act are
repealed.
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| If a railway line discontinued before coming into force
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20. If, before the coming into force of this
section, a railway company discontinued operating a grain-dependent branch
line listed in Schedule I to the Act, as enacted by section 18, or a
portion of such a line, that is in a municipality or district, the company
shall make three annual payments, commencing on the date that this section
comes into force, in accordance with section 146.1 of the Act.
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| Coming into force
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21. (1) Subject to subsection (2), the provisions
of this Act come into force on a day or days to be fixed by order of the
Governor in Council.
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| Coming into force of sections 9 and 10
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(2) Sections 9 and 10 come into force, or are
deemed to have come into force, on August 1, 2000.
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