Transportation Modernization Act (S.C. 2018, c. 10)
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Assented to 2018-05-23
Transportation Modernization Act
S.C. 2018, c. 10
Assented to 2018-05-23
An Act to amend the Canada Transportation Act and other Acts respecting transportation and to make related and consequential amendments to other Acts
RECOMMENDATION
His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Canada Transportation Act and other Acts respecting transportation and to make related and consequential amendments to other Acts”.
SUMMARY
This enactment amends the Canada Transportation Act in respect of air transportation and railway transportation.
With respect to air transportation, it amends the Canada Transportation Act to require the Canadian Transportation Agency to make regulations establishing a new air passenger rights regime and to authorize the Governor in Council to make regulations requiring air carriers and other persons providing services in relation to air transportation to report on different aspects of their performance with respect to passenger experience or quality of service. It amends the definition of Canadian in that Act in order to raise the threshold of voting interests in an air carrier that may be owned and controlled by non-Canadians while retaining its Canadian status, while also establishing specific limits related to such interests. It also amends that Act to create a new process for the review and authorization of arrangements involving two or more transportation undertakings providing air services to take into account considerations respecting competition and broader considerations respecting public interest.
With respect to railway transportation, it amends the Act to, among other things,
(a) provide that the Canadian Transportation Agency will offer information and informal dispute resolution services;
(b) expand the Governor in Council’s powers to make regulations requiring major railway companies to provide to the Minister of Transport and the Agency information relating to rates, service and performance;
(c) repeal provisions of the Act dealing with insolvent railway companies in order to allow the laws of general application respecting bankruptcy and insolvency to apply to those companies;
(d) clarify the factors that must be applied in determining whether railway companies are fulfilling their service obligations;
(e) shorten the period within which a level of service complaint is to be adjudicated by the Agency;
(f) enable shippers to obtain terms in their contracts dealing with amounts to be paid in relation to a failure to comply with conditions related to railway companies’ service obligations;
(g) require the Agency to set the interswitching rate annually;
(h) create a new remedy for shippers who have access to the lines of only one railway company at the point of origin or destination of the movement of traffic in circumstances where interswitching is not available;
(i) change the process for the transfer and discontinuance of railway lines to, among other things, require railway companies to make certain information available to the Minister and the public and establish a remedy for non-compliance with the process;
(j) change provisions respecting the maximum revenue entitlement for the movement of Western grain and require certain railway companies to provide to the Minister and the public information respecting the movement of grain; and
(k) change provisions respecting the final offer arbitration process by, among other things, increasing the maximum amount for the summary process to $2 million and by making a decision of an arbitrator applicable for a period requested by the shipper of up to two years.
It amends the CN Commercialization Act to increase the maximum proportion of voting shares of the Canadian National Railway Company that can be held by any one person to 25%.
It amends the Railway Safety Act to prohibit a railway company from operating railway equipment and a local railway company from operating railway equipment on a railway unless the equipment is fitted with the prescribed recording instruments and the company, in the prescribed manner and circumstances, records the prescribed information using those instruments, collects the information that it records and preserves the information that it collects. This enactment also specifies the circumstances in which the prescribed information that is recorded can be used and communicated by companies, the Minister of Transport and railway safety inspectors.
It amends the Canadian Transportation Accident Investigation and Safety Board Act to allow the use or communication of an on-board recording, as defined in subsection 28(1) of that Act, if that use or communication is expressly authorized under the Aeronautics Act, the National Energy Board Act, the Railway Safety Act or the Canada Shipping Act, 2001.
It amends the Canadian Air Transport Security Authority Act to authorize the Canadian Air Transport Security Authority to enter into agreements for the delivery of screening services on a cost-recovery basis.
It amends the Coasting Trade Act to enable repositioning of empty containers by ships registered in any register. These amendments are conditional on Bill C-30, introduced in the 1st session of the 42nd Parliament and entitled the Canada–European Union Comprehensive Economic and Trade Agreement Implementation Act, receiving royal assent and sections 91 to 94 of that Act coming into force.
It amends the Canada Marine Act to permit port authorities and their wholly-owned subsidiaries to receive loans and loan guarantees from the Canada Infrastructure Bank. These amendments are conditional on Bill C-44, introduced in the 1st session of the 42nd Parliament and entitled the Budget Implementation Act, 2017, No. 1, receiving royal assent.
Finally, it makes related and consequential amendments to the Bankruptcy and Insolvency Act, the Competition Act, the Companies’ Creditors Arrangement Act, the Air Canada Public Participation Act, the Budget Implementation Act, 2009 and the Fair Rail for Grain Farmers Act.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Short Title
Marginal note:Short title
1 This Act may be cited as the Transportation Modernization Act.
1996, c. 10Canada Transportation Act
2 Section 6 of the Canada Transportation Act is amended by adding the following in alphabetical order:
- class 1 rail carrier
class 1 rail carrier means
(a) the Canadian National Railway Company,
(b) the Canadian Pacific Railway Company,
(c) BNSF Railway Company,
(d) CSX Transportation, Inc.,
(e) Norfolk Southern Railway Company,
(f) Union Pacific Railroad Company, and
(g) any railway company, as defined in section 87, that is specified in the regulations; (transporteur ferroviaire de catégorie 1)
- radioactive material
radioactive material has the same meaning as in subsection 1(1) of the Packaging and Transport of Nuclear Substances Regulations, 2015. It includes a dangerous good with any of UN numbers 2908 to 2913, 2915 to 2917, 2919, 2977, 2978, 3321 to 3333 and 3507 that are set out in Column 1 of the Dangerous Goods List in Chapter 3.2 of the Recommendations on the Transport of Dangerous Goods — Model Regulations, Eighteenth revised edition, 2013, published by the United Nations; (matière radioactive)
3 The Act is amended by adding the following after section 6:
Power of the Governor in Council
Marginal note:Governor in Council
6.1 The Governor in Council may make regulations specifying railway companies for the purpose of paragraph (g) of the definition class 1 rail carrier.
4 Subsection 27(1) of the English version of the Act is replaced by the following:
Marginal note:Relief
27 (1) The Agency may grant the whole or part of an application, or may make any order or grant any further or other relief that the Agency considers appropriate.
5 The Act is amended by adding the following after section 36.1:
Information and Informal Dispute Resolution Services
Marginal note:Information and guidance
36.11 (1) The Agency shall take measures to inform the public in respect of the provisions of Parts III and IV, including
(a) publishing general information on its Internet site; and
(b) providing information and guidance to any interested person on the manner in which remedies under those provisions may be accessed, having regard to their particular circumstances.
Marginal note:Informal resolution
(2) A member of the Agency or its staff may attempt to resolve in an informal manner with a railway company any issue raised by an interested person to whom it has provided information and guidance. In doing so, the member or staff shall not reveal the identity of the interested person without their consent.
Marginal note:Person not to act in proceedings
(3) A person who exercises the powers or performs the duties or functions under paragraph (1)(b) or subsection (2) shall not act in any proceedings before the Agency that are related to an issue in respect of which the person provided information, guidance or informal dispute resolution services.
6 Section 42 of the Act is amended by adding the following after subsection (2):
Marginal note:Railway transportation
(2.1) The report shall include the number and nature of the applications, complaints and submissions for arbitration made under Parts III and IV, the manner they were dealt with and the systemic trends observed. The report shall also include the number of disputes that were mediated by the Agency and the number that were resolved through mediation by the Agency.
Marginal note:Confidential information
(2.2) The Agency shall ensure that the report does not include any confidential information.
7 Section 48 of the Act and the heading “Support Agreements” before it are repealed.
8 Section 49 of the Act is renumbered as subsection 49(1) and is amended by adding the following:
Marginal note:Powers
(2) For greater certainty, sections 38 and 39 apply in respect of an inquiry.
Marginal note:Summary of findings
(3) The Agency shall make public a summary of its findings that does not include any confidential information.
9 (1) Section 50 of the Act is amended by adding the following after subsection (1):
Marginal note:Class 1 rail carrier
(1.01) The Governor in Council may make regulations requiring any class 1 rail carrier or class of those carriers to provide information, other than personal information as defined in section 3 of the Privacy Act, to the Minister or Agency, when and in the form and manner that the regulations may specify, for the purposes of
(a) determining the long-haul interswitching rate referred to in paragraph 134(1)(a); and
(b) communicating service and performance indicators to the public.
Marginal note:2007, c. 19, s. 8(4)
(2) The portion of subsection 50(1.1) of the French version of the Act before paragraph (a) is replaced by the following:
Marginal note:Personnes visées
(1.1) Pour l’application du paragraphe (1), les renseignements peuvent être exigés des personnes suivantes :
(3) The portion of subsection 50(2) of the Act before paragraph (c) is replaced by the following:
Marginal note:Information to be provided
(2) Information that is required to be provided under this section may include the following:
(a) financial information;
(b) information respecting traffic and operations;
(4) Subsection 50(2) of the Act is amended by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):
(d) information respecting the performance of air carriers and providers of services in relation to air transportation with regard to passenger experience and the quality of service.
Marginal note:1999, c. 31, s. 36(E)
(5) Subsection 50(4) of the Act is replaced by the following:
Marginal note:Exemptions
(4) The Minister may exempt a carrier or transportation undertaking from the application of all or any part of a regulation made under this section if the Minister is satisfied that it is not practicable for the carrier or transportation undertaking to provide the information.
Marginal note:2013, c. 31, s. 4
10 Subsection 50.01(1) of the Act is replaced by the following:
Marginal note:Externally produced documents
50.01 (1) A regulation made under subsection 50(1) or (1.01) may incorporate by reference any document that is produced by a person or body other than the Minister.
Marginal note:2007, c. 19, s. 9
11 Section 50.1 of the Act is replaced by the following:
Marginal note:Information already provided
50.1 For the purposes of subsection 50(1) or (1.01), if any information referred to in that subsection has already been provided to a department or agency of the Government of Canada, the Minister may request that department or agency to provide the information to the Minister.
Marginal note:2007, c. 19, s. 10(1)
12 (1) Paragraph 51(2)(a) of the Act is replaced by the following:
(a) the communication of information to the Agency, the Administrator of the Fund appointed under section 153.7, Statistics Canada or a minister of the Crown in right of Canada, the agent of that minister or an officer or employee of, or adviser to, Her Majesty in right of Canada for the purposes of the administration of this Act or any other Act of Parliament or for the purposes of the development of policies;
Marginal note:2007, c. 19, s. 10(1)
(2) Paragraph 51(2)(c) of the Act is replaced by the following:
(c) the communication of information, including to the public, in an aggregated form that prevents information obtained from an identifiable person from being related to that person;
13 The Act is amended by adding the following after section 51:
Marginal note:Publication
51.1 Despite subsection 51(1), the Minister may make the information referred to in paragraph 50(2)(d) public.
Marginal note:Confidentiality of information — Agency
51.2 Information that is required to be provided to the Agency in accordance with regulations made under paragraph 50(1.01)(a) is, when it is received by the Agency, confidential and shall not knowingly be disclosed or made available by any person without the authorization of the person who provided the information, except for the purpose of a prosecution of a contravention of section 173.
Marginal note:Use of information
51.3 Information that is provided to the Minister or the Agency in accordance with regulations made under paragraph 50(1.01)(a) is only to be used by the Agency for the purpose of determining the long-haul interswitching rate referred to in paragraph 134(1)(a) and, despite subsection 51(4) and section 51.2, the Agency may, for that purpose, communicate the information in an aggregated form.
Marginal note:Publication
51.4 (1) If the Agency receives information from class 1 rail carriers or the Minister that is related to service and performance indicators provided in accordance with regulations made under paragraph 50(1.01)(b), the Agency shall publish the information on its Internet site within two days after it is received.
Marginal note:Information received from Minister
(2) Subsection 51(4) does not apply to the publication, in accordance with subsection (1), of information that is received from the Minister.
14 The Act is amended by adding the following after section 53.6:
Review of Arrangements Involving Two or More Transportation Undertakings Providing Air Services
Marginal note:Definitions
53.7 The following definitions apply in sections 53.71 to 53.84.
- arrangement
arrangement means an agreement or arrangement, other than a transaction referred to in subsection 53.1(1), involving two or more transportation undertakings providing air services, as defined in subsection 55(1), to, from or within Canada, to coordinate on any aspect of the operation or marketing of such services, including prices, routes, schedules, capacity or ancillary services and to share costs or revenues or other resources or benefits. (entente)
- party
party means any person who proposes to enter into or has entered into an arrangement for which a notice has been given under subsection 53.71(1). (partie)
Marginal note:Notice
53.71 (1) Every person who proposes to enter into an arrangement may notify the Minister of that arrangement. If the person so notifies the Minister, they shall at the same time provide a copy of the notice to the Commissioner of Competition.
Marginal note:Information
(2) A notice given under subsection (1) shall contain any information that is required under the guidelines that are issued and published by the Minister, including information that relates to considerations respecting competition.
Marginal note:Guidelines
(3) The guidelines referred to in subsection (2) shall be developed in consultation with the Competition Bureau and shall include factors that may be considered by the Minister to determine whether a proposed arrangement raises significant considerations with respect to the public interest under subsection (6) and, if applicable, to render a final decision regarding the arrangement under subsection 53.73(8).
Marginal note:Not statutory instruments
(4) The guidelines referred to in subsection (2) are not statutory instruments within the meaning of the Statutory Instruments Act.
Marginal note:Further information
(5) The Minister or the Commissioner may, after receiving a notice or copy of a notice under subsection (1), require any party to provide further information.
Marginal note:Minister’s response
(6) The Minister shall, within 45 days after the day on which he or she receives the notice with the information referred to in subsection (2), inform the parties and the Commissioner as to whether, in his or her opinion, the proposed arrangement raises significant considerations with respect to the public interest.
Marginal note:No significant public interest considerations
(7) If the Minister is of the opinion that the proposed arrangement does not raise significant considerations with respect to the public interest, sections 53.72 to 53.79 do not apply to that arrangement.
Marginal note:Significant public interest considerations
(8) If the Minister is of the opinion that the proposed arrangement raises significant considerations with respect to the public interest, the arrangement is subject to the review process set out in section 53.73.
Marginal note:Prohibition
53.72 If a notice has been given under subsection 53.71(1), the proposed arrangement shall not be completed without the Minister’s authorization under subsection 53.73(8).
Marginal note:Review process
53.73 (1) The Minister, or a person designated by the Minister, shall examine the proposed arrangement, if it is subject to the review process.
Marginal note:Commissioner’s report
(2) The Commissioner of Competition shall, within 120 days after the day on which he or she receives a copy of the notice under subsection 53.71(1) with the information referred to in subsection 53.71(2), report to the Minister and the parties on any concerns regarding potential prevention or lessening of competition that may occur as a result of the proposed arrangement.
Marginal note:Summary
(3) Unless a notice is withdrawn or is deemed to have been withdrawn under section 53.8, the Commissioner shall make public a summary of the conclusions of the report that does not include any confidential information.
Marginal note:Communicating concerns
(4) The Minister shall, within 150 days after the day on which he or she receives the notice with the information referred to in subsection 53.71(2), report to the parties on any concerns with respect to the public interest that may occur as a result of the proposed arrangement and provide a copy of the report to the Commissioner.
Marginal note:Measures to address concerns
(5) The parties shall, within 30 days after the day on which they receive the report under subsection (4), respond in writing to the Minister, addressing any concerns with respect to the public interest and competition raised by the Minister and the Commissioner and informing the Minister, among other things, of any measures they are prepared to undertake to address those concerns. The parties may propose amendments to the arrangement.
Marginal note:Preliminary decision
(6) The Minister shall, after consulting with the Commissioner and within 45 days after the day on which he or she receives the response from the parties under subsection (5), render a preliminary decision regarding the proposed arrangement and specify any terms and conditions relating to the public interest and competition under which an authorization could be given under subsection (8).
Marginal note:Response to preliminary decision
(7) The parties shall, within 30 days after the day on which they receive the Minister’s preliminary decision, provide a response in writing to the Minister and the response may include proposed amendments to the terms and conditions specified in the decision.
Marginal note:Final decision
(8) The Minister shall, within 30 days after the day on which he or she receives a response from the parties under subsection (7), render a final decision and make public a summary of that decision that does not include any confidential information. The Minister may, if satisfied that the proposed arrangement is in the public interest, authorize it and specify any terms and conditions relating to the public interest and competition that the Minister considers appropriate.
Marginal note:Canadian
53.74 An authorization given by the Minister under subsection 53.73(8) does not affect any requirement that a transportation undertaking providing air services, as defined in subsection 55(1), be Canadian, as defined in that subsection.
Marginal note:Varying or rescinding terms and conditions
53.75 On application by any party who is subject to terms and conditions of an authorization, the Minister may, after consulting with the Commissioner of Competition, vary or rescind the terms and conditions and shall make public a summary of that decision that does not include any confidential information.
Marginal note:Proposed amendment to arrangement
53.76 (1) The parties to an authorized arrangement may propose an amendment to that arrangement to the Minister and he or she may, after consulting with the Commissioner of Competition and considering the significance of the amendment,
(a) authorize the amendment, subject to any terms and conditions that the Minister may impose; or
(b) require the parties to submit a new notice under subsection 53.71(1) for review of the proposed amended arrangement, unless the parties decide not to proceed with the amendment.
Marginal note:No confidential information made public
(2) If the Minister authorizes the amendment under paragraph (1)(a), he or she shall make public a summary of that decision that does not include any confidential information.
Marginal note:Concerns regarding authorized arrangement
53.77 (1) The Minister may, at any time after the second anniversary of the day on which an arrangement is authorized, notify the parties of any concerns raised by the arrangement with respect to the public interest and competition.
Marginal note:Measures to address concerns
(2) The parties shall, within 45 days after the day on which they receive the notice under subsection (1), provide a response in writing to the Minister, specifying, among other things, any measures they are prepared to undertake to address those concerns. The parties may propose amendments to the arrangement.
Marginal note:Continuing the authorization
(3) If, after consulting with the Commissioner, the Minister determines that the arrangement is still in the public interest, the authorization is continued subject to any new or amended terms and conditions specified by the Minister to address the concerns referred to in subsection (1).
Marginal note:Obligation to comply with terms and conditions
53.78 Every person who is subject to terms and conditions under subsection 53.73(8), section 53.75, paragraph 53.76(a) or subsection 53.77(3) shall comply with them.
Marginal note:Revoking authorization — false or misleading information
53.79 (1) The Minister may revoke an authorization at any time if it was granted on the basis of information that is false or misleading in a material respect or if the parties fail to comply with any of the authorization’s terms or conditions.
Marginal note:Revoking authorization — other grounds
(2) The Minister may also revoke the authorization of an arrangement if
(a) that arrangement is significantly amended without prior authorization; or
(b) the Minister, after considering any response of the parties to the concerns raised under subsection 53.77(1), is no longer satisfied that the arrangement is in the public interest.
Marginal note:Withdrawing notice
53.8 (1) A notice given under subsection 53.71(1) may be withdrawn at any time before a final decision is rendered under subsection 53.73(8).
Marginal note:Deemed withdrawal
(2) A notice is deemed to have been withdrawn if the parties fail to respond to the Minister within any period specified in subsection 53.73(5) or (7) or any extended period, as the case may be.
Marginal note:Effect of withdrawal
(3) If a notice given under subsection 53.71(1) is withdrawn or is deemed to have been withdrawn, section 53.72 no longer applies to the proposed arrangement.
Marginal note:Extension of time
53.81 The Minister may, at the request of the parties or on the Minister’s own initiative, extend any period specified in section 53.71, 53.73 or 53.77 if the Minister considers it appropriate in the circumstances, including when the arrangement is exceptionally complex.
Marginal note:Order
53.82 If a person contravenes sections 53.72 or 53.78, a superior court may, on application by the Minister, order the person to cease the contravention or do any thing that is required to be done, and may make any other order that it considers appropriate, including an order requiring the divestiture of assets. The Minister shall notify the Commissioner of Competition before making an application.
Marginal note:Offence — section 53.72 or 53.78
53.83 (1) Every person who contravenes section 53.72 or 53.78 is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years or to a fine of not more than $10,000,000, or to both.
Marginal note:Continuing offence
(2) If an offence under subsection (1) for the contravention of section 53.78 is committed or continued on more than one day, the person who commits it is liable to be convicted for a separate offence for each day on which it is committed or continued.
Marginal note:Officers, etc., of corporations
(3) If a corporation commits an offence under subsection (1), any officer, director or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.
Marginal note:Sections 174 and 175 do not apply
(4) Sections 174 and 175 do not apply in respect of an offence committed under subsection (1).
Marginal note:Cost recovery
53.84 (1) The Governor in Council may make regulations respecting
(a) the fees to be paid by the parties to an arrangement for any activities undertaken by the Minister under sections 53.71 to 53.76 that are related to the arrangement, including the method of calculating the fees; and
(b) the refund of all or part of any fee referred to in paragraph (a), including the method of calculating the refund.
Marginal note:Amounts not to exceed cost
(2) The fees referred to in paragraph (1)(a) shall not exceed the costs related to the activities undertaken by the Minister under sections 53.71 to 53.76 that are related to the arrangement.
Marginal note:Remittance of fees and charges
(3) The fees paid in accordance with regulations made under subsection (1) shall be deposited to the credit of the Receiver General in the time and manner prescribed under those regulations.
Marginal note:Spending authority
(4) The Minister may spend the amounts deposited under subsection (3) in the fiscal year in which they are paid or in the next fiscal year.
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