PART IIIRailway Transportation (continued)
DIVISION IVRates, Tariffs and Services (continued)
Level of Services (continued)
Marginal note: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
(a) conduct, as expeditiously as possible, an investigation of the complaint that, in its opinion, is warranted; and
(b) within 90 days after receipt of the complaint, determine whether the company is fulfilling that obligation.
Marginal note:Time limits
(1.1) For the purpose of an investigation conducted under subsection (1), the Agency shall allow a company at least 20 days to file an answer and at least 10 days for a complainant to file a reply.
Marginal note:Agency’s own motion
(1.11) The Agency may, with the authorization of the Minister and subject to any terms and conditions that the Minister considers appropriate, of its own motion, conduct an investigation to determine whether a railway company is fulfilling its service obligations. The Agency shall conduct the investigation as expeditiously as possible and make its determination within 90 days after the investigation begins.
(1.2) The Agency shall determine that a company is fulfilling its service obligations if it is satisfied that the company provides the highest level of service in respect of those obligations that it can reasonably provide in the circumstances, having regard to the following considerations:
(a) the traffic to which the service obligations relate;
(b) the reasonableness of the shipper’s requests with respect to the traffic;
(c) the service that the shipper requires with respect to the traffic;
(d) any undertaking with respect to the traffic given by the shipper to the company;
(e) the company’s and the shipper’s operational requirements and restrictions;
(f) the company’s obligations, if any, with respect to a public passenger service provider;
(g) the company’s obligations in respect of the operation of the railway under this Act;
(h) the company’s contingency plans to allow it to fulfil its service obligations when faced with foreseeable or cyclical events; and
(i) any information that the Agency considers relevant.
Marginal note: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.
Marginal note:Long-haul interswitching order binding on Agency
(3) If a long-haul interwitching order has been made under subsection 134(1), the terms established by the order that are related to the manner in which the local carrier is to fulfil its service obligations are binding on the Agency in making its determination.
Marginal note: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;
(c.1) order the company to compensate any person adversely affected for any expenses that they incurred as a result of the company’s failure to fulfil its service obligations or, if the company is a party to a confidential contract with a shipper that requires the company to pay an amount of compensation for expenses incurred by the shipper as a result of the company’s failure to fulfil its service obligations, order the company to pay that amount to the shipper;
(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.
Marginal note: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.
Marginal note:Right of action not limited
(5.1) If an arbitrator’s decision made under section 169.37 includes a term with respect to an amount described in paragraph 169.31(1)(c.1), the term does not limit the right to claim an amount of compensation in an action under subsection (5).
Marginal note:Company not relieved
(6) Subject to the terms of a confidential contract referred to in subsection 113(4) or a tariff that sets out, in accordance with subsection 136.4(1), terms established in a long-haul interswitching order, 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.
- 1996, c. 10, s. 116
- 2000, c. 16, s. 4
- 2014, c. 8, s. 5.1
- 2018, c. 10, ss. 23, 95
Traffic of Grain
116.1 [Repealed, 2014, c. 8, s. 6]
116.2 [Repealed, 2014, c. 8, s. 6]
116.3 [Repealed, 2014, c. 8, s. 6]
Tariffs — General
Marginal note: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.
Marginal note:Tariff to include prescribed information
(2) The tariff must include any information that the Agency may prescribe by regulation.
Marginal note:Accessibility of tariff
(3) The railway company shall make the tariff accessible to the public by publishing it on its Internet site.
(4) [Repealed, 2018, c. 10, s. 24]
Marginal note:Record of tariff
(5) The railway company shall keep a record of the tariff for at least three years after its cancellation.
- 1996, c. 10, s. 117
- 2018, c. 10, s. 24
Tariffs — Freight
Marginal note: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.
Marginal note:Notice of change of tariff
119 (1) A railway company that proposes to increase a rate in a tariff for the movement of traffic shall publish a notice of the increase at least 30 days before its effective date.
Marginal note:Effect of freight tariff
(2) If a railway company issues and publishes a tariff of rates for the movement of traffic in accordance with this Division and Division VI,
(a) the rates are the lawful rates of the railway company and, subject to subsection (1), they take effect on the date stated in the tariff;
(b) the tariff supersedes any preceding tariff or any portion of it in so far as any rate in the tariff is varied; and
(c) a railway company that owns or operates a railway line in respect of which the tariff is issued shall charge the rates in the tariff until they expire or until the tariff is superseded by a new tariff.
- 1996, c. 10, s. 119
- 2008, c. 5, s. 2
Marginal note:Application to vessels
120 The provisions of this Division relating to tariffs, in so far as the Agency considers them applicable, apply to traffic carried by a railway company by water between ports or places in Canada if the company owns, charters, uses, maintains or operates vessels for carrying traffic by water between ports or places in Canada, or is a party to an arrangement for using, maintaining or operating vessels for that purpose.
Marginal note:Unreasonable charges or terms
120.1 (1) If, on complaint in writing to the Agency by a shipper who is subject to any charges and associated terms and conditions for the movement of traffic or for the provision of incidental services that are found in a tariff that applies to more than one shipper other than a tariff referred to in subsection 165(3), the Agency finds that the charges or associated terms and conditions are unreasonable, the Agency may, by order, establish new charges or associated terms and conditions.
Marginal note:Period of validity
(2) An order made under subsection (1) remains in effect for the period, not exceeding one year, specified in the order.
Marginal note:Factors to be considered
(3) In deciding whether any charges or associated terms and conditions are unreasonable, the Agency shall take into account the following factors:
(a) the objective of the charges or associated terms and conditions;
(b) the industry practice in setting the charges or associated terms and conditions;
(c) in the case of a complaint relating to the provision of any incidental service, the existence of an effective, adequate and competitive alternative to the provision of that service; and
(d) any other factor that the Agency considers relevant.
Marginal note:Commercially fair and reasonable
(4) Any charges or associated terms and conditions established by the Agency shall be commercially fair and reasonable to the shippers who are subject to them as well as to the railway company that issued the tariff containing them.
Marginal note:Duty to vary tariff
(5) The railway company shall, without delay after the Agency establishes any charges or associated terms and conditions, vary its tariff to reflect those charges or associated terms and conditions.
Marginal note:No variation
(6) The railway company shall not vary its tariff with respect to any charges or associated terms and conditions established by the Agency until the period referred to in subsection (2) has expired.
(7) For greater certainty, this section does not apply to rates for the movement of traffic.
- 2008, c. 5, s. 3
Marginal note:Continuous route in Canada
121 (1) If traffic is to move over a continuous route in Canada and portions of it are operated by two or more railway companies, the companies shall, at the request of a shipper intending to move the traffic,
(a) agree on a joint tariff for the continuous route and on the apportionment of the rate in the joint tariff; or
(b) enter into a confidential contract for the continuous route.
Marginal note:Agency may decide if no agreement
(2) If the railway companies fail to agree or to enter into a confidential contract, the Agency, on the application of the shipper, may
(a) direct the companies, within any time that the Agency may specify, to agree on a joint tariff for the continuous route and an apportionment of the rate that is satisfactory to the Agency; or
(b) within ninety days after the application is received by the Agency,
(i) determine the route and the rate and apportion the rate among the companies, and
(ii) determine the dates, not earlier than the date of receipt by the Agency of the application, when the rate comes into effect and when it must be published.
Marginal note:Refund to shipper
(3) If the Agency determines a rate under paragraph (2)(b), the companies that operate the route shall pay a shipper who moved traffic over the route an amount equal to the difference, if any, between the rate that was paid by the shipper and the rate determined by the Agency, applicable to all movements of traffic by the shipper over the route from the date on which the application was made to the date on which the determined rate comes into effect.
Marginal note:Publication requirements for joint tariff or rate
122 (1) If a joint tariff or rate is agreed on or determined under section 121, the requirements of this Division for the publication of the tariff or rate apply only to the railway company operating the railway line on which the movement of the traffic originates.
Marginal note:Publication of subsection 121(2) tariff or rate
(2) A joint tariff or rate agreed on or determined under subsection 121(2) must be published without delay, or within any additional time that the Agency may specify.
Marginal note:Publication of joint tariff — from Canada to or through foreign country
123 If traffic is to move over a continuous route from a point in Canada through a foreign country into Canada, or from a point in Canada to a foreign country, and the continuous route is operated by two or more railway companies, the requirements of this Division for the publication of an applicable joint tariff apply only to the railway company operating the railway line on which the movement of the traffic originates.
Marginal note:Publication of joint tariff — from foreign country to or through Canada
124 If traffic is to move over a continuous route from a point in a foreign country into Canada, or from a foreign country through Canada into a foreign country, and the continuous route is operated by two or more companies, the requirements of this Division for the publication of an applicable joint tariff apply only to the railway company operating the railway line on which the traffic is first moved in Canada.
Marginal note:Continuous carriage not to be prevented
125 (1) No railway company shall, by any combination, contract or agreement, express or implied, or by any other means, prevent traffic from being moved on a continuous route from the point of origin to the point of destination.
Marginal note:Break in bulk, etc.
(2) A break in bulk, stop or interruption made by a railway company does not prevent the movement of traffic from being treated, for the purposes of sections 121 to 124, as one continuous movement from the point of origin to the point of destination, if the break, stop or interruption was made in good faith for a necessary purpose and without intent to avoid or unnecessarily interrupt the continuous movement or to evade the provisions of this Division.
Marginal note:Agency may require information
(3) The Agency may direct a railway company operating on a continuous route to inform the Agency of the proportion of the rates that the railway company, or any other company operating on the continuous route, is to receive or has received under a joint tariff or confidential contract applicable to the route.
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