Canada Transportation Act (S.C. 1996, c. 10)

DIVISION IIArbitration on Level of Services

Marginal note:Submission for arbitration — confidential contract

• 169.31 (1) If a shipper and a railway company are unable to agree and enter into a contract under subsection 126(1) respecting the manner in which the railway company must fulfil its service obligations under section 113, the shipper may submit any of the following matters, in writing, to the Agency for arbitration:

  • (a) the operational terms that the railway company must comply with in respect of receiving, loading, carrying, unloading and delivering the traffic, including performance standards and communication protocols;

  • (b) the operational terms that the railway company must comply with if it fails to comply with an operational term described in paragraph (a);

  • (c) any operational term that the shipper must comply with that is related to an operational term described in paragraph (a) or (b);

  • (c.1) any amount to be paid by the company or the shipper in relation to a failure to comply with any operational term described in paragraphs (a) to (c);

  • (d) any service provided by the railway company incidental to transportation that is customary or usual in connection with the business of a railway company;

  • (e) the question of whether the railway company may apply a charge with respect to an operational term described in paragraph (a) or (b) or for a service described in paragraph (d); or

  • (f) the dispute resolution process related to the implementation of the arbitrator’s decision.

• Marginal note:Regulations

  (1.1) The Agency may make regulations specifying what constitutes operational terms for the purposes of paragraphs (1)(a) to (c).

• Marginal note:Matter excluded from arbitration

  (2) The shipper is not entitled to submit to the Agency for arbitration a matter that

  • (a) is governed by a written agreement, including a confidential contract, to which the shipper and the railway company are parties; or

  • (b) is the subject of an order, other than an interim order, made under subsection 116(4).

• Marginal note:Excluded matter — traffic

  (3) The shipper is not entitled to submit to the Agency for arbitration a matter that is in respect of traffic that is the subject of

  • (a) a confidential contract between the shipper and the railway company that is in force immediately before the day on which this section comes into force;

  • (b) a tariff, or a contract, referred to in subsection 165(3);

  • (c) a long-haul interswitching order made under subsection 134(1); or

  • (d) an arbitrator’s decision made under section 169.37.

• Marginal note:Clarification

  (4) For greater certainty, a rate for the movement of the traffic is not to be subject to arbitration.

Marginal note:Contents of submission

• 169.32 (1) The submission must contain

  • (a) a detailed description of the matters submitted to the Agency for arbitration;

  • (b) a description of the traffic to which the service obligations relate;

  • (c) an undertaking with respect to the traffic, if any, given by the shipper to the railway company that must be complied with for the period during which the arbitrator’s decision applies to the parties, other than an undertaking given by the shipper to the railway company with respect to an operational term described in paragraph 169.31(1)(c);

  • (d) an undertaking given by the shipper to the railway company to ship the goods to which the service obligations relate in accordance with the arbitrator’s decision; and

  • (e) an undertaking given by the shipper to the Agency to pay the fee and costs for which the shipper is liable under subsection 169.39(3) as a party to the arbitration.

• Marginal note:Copy of submission served

  (2) The shipper must serve a copy of the submission on the railway company on the day on which it submits the matters to the Agency for arbitration.

Marginal note:Arbitration precluded in certain cases

• 169.33 (1) The Agency must dismiss the submission if

  • (a) the shipper has not, at least 15 days before making it, served on the railway company and the Agency a written notice indicating that the shipper intends to make a submission to the Agency for arbitration; or

  • (b) the shipper does not demonstrate, to the Agency’s satisfaction, that an attempt has been made to resolve the matters contained in it.

• Marginal note:Content of notice

  (2) The notice must contain the descriptions referred to in paragraphs 169.32(1)(a) and (b) and, if the shipper’s submission will contain an undertaking described in paragraph 169.32(1)(c), a description of that undertaking.

Marginal note:Submission of proposals

• 169.34 (1) Despite any application filed under section 169.43, the shipper and the railway company must each submit, within 10 days after the day on which a copy of a submission is served under subsection 169.32(2), to the Agency, in order to resolve the matters that are submitted to it for arbitration by the shipper, a proposal that contains any of the following terms:

  • (a) any operational term described in paragraph 169.31(1)(a), (b) or (c);

  • (a.1) any term with respect to an amount described in paragraph 169.31(1)(c.1), if the matter in respect of the amount has been submitted by the shipper for arbitration;

  • (b) any term for the provision of a service described in paragraph 169.31(1)(d);

  • (c) any term with respect to the application of a charge described in paragraph 169.31(1)(e); or

  • (d) any term with respect to the dispute resolution process described in paragraph 169.31(1)(f).

• Marginal note:Proposals provided to parties

  (2) The Agency must provide the shipper and the railway company with a copy of the other party’s proposal immediately after the day on which it receives the last of the two proposals.

• Marginal note:Exchange of information

  (3) The parties must exchange the information that they intend to submit to the arbitrator in support of their proposals within 20 days after the day on which a copy of a submission is served under subsection 169.32(2) or within a period agreed to by the parties or fixed by the arbitrator.

• Marginal note:Exception

  (4) Unless the parties agree otherwise, a party to the arbitration is not, in support of the proposal it submits under subsection (1), to refer to any offer, or any part of an offer, that was made to it — before a copy of the submission is served under subsection 169.32(2) — by the other party to the arbitration for the purpose of entering into a confidential contract.

• Marginal note:If no proposal from party

  (5) If one party does not submit a proposal in accordance with subsection (1), the proposal submitted by the other party is the arbitrator’s decision made under section 169.37.

Marginal note:Arbitration

• 169.35 (1) Despite any application filed under section 169.43, the Agency must refer, within two business days after the day on which it receives the last of the two proposals, the matters for arbitration to be conducted by an arbitrator that it chooses.

• Marginal note:Arbitrator not to act in other proceedings

  (2) The arbitrator is not to act in any other proceedings in relation to a matter that is referred to him or her for arbitration.

• Marginal note:Assistance by Agency

  (3) The Agency may, at the arbitrator’s request, provide administrative, technical and legal assistance to the arbitrator.

• Marginal note:Arbitration not proceeding

  (4) The arbitration is not a proceeding before the Agency.

Marginal note:Agency’s rules of procedure

• 169.36 (1) The Agency may make rules of procedure for an arbitration.

• Marginal note:Procedure generally

  (2) Subject to any rule of procedure made by the Agency and in the absence of an agreement between the arbitrator and the parties as to the procedure to be followed, the arbitrator must conduct the arbitration as quickly as possible and in the manner that he or she considers appropriate having regard to the circumstances of the matter.

• Marginal note:Questions

  (3) Each party may direct questions to the other in the manner that the arbitrator considers appropriate.

Marginal note:Arbitrator’s decision

• 169.37 (1) The arbitrator’s decision must establish the following terms, or any combination of the following terms, that the arbitrator considers necessary to resolve the matters that are referred to him or her for arbitration:

  • (a) any operational term described in paragraph 169.31(1)(a), (b) or (c);

  • (b) any term with respect to an amount described in paragraph 169.31(1)(c.1) if the matter in respect of the amount has been submitted by the shipper for arbitration;

  • (c) any term for the provision of a service described in paragraph 169.31(1)(d);

  • (d) any term with respect to the application of a charge described in paragraph 169.31(1)(e); or

  • (e) any term with respect to the dispute resolution process described in paragraph 169.31(1)(f).

• Marginal note:Elements to consider

  (2) In making the decision, the arbitrator must have regard to the following:

  • (a) the traffic to which the service obligations relate;

  • (b) the service that the shipper requires with respect to the traffic;

  • (c) any undertaking described in paragraph 169.32(1)(c) that is contained in the shipper’s submission;

  • (d) the railway company’s obligations under this Act in respect of the operation of the railway;

  • (e) the railway company’s obligations, if any, with respect to a public passenger service provider;

  • (f) the railway company’s and the shipper’s operational requirements and restrictions;

  • (g) the question of whether there is available to the shipper an alternative, effective, adequate and competitive means of transporting the goods to which the service obligations relate; and

  • (h) any information that the arbitrator considers relevant.

• Marginal note:Efficiency

  (3) The arbitrator shall establish a term with respect to an amount described in paragraph 169.31(1)(c.1) in a manner that encourages the efficient movement of the shipper’s traffic and the performance of the railway system and that is balanced between the shipper and the railway company.

Marginal note:Requirements of decision

• 169.38 (1) The arbitrator’s decision must

  • (a) be made in writing;

  • (b) be made so as to apply to the parties for a period of one year as of the date of his or her decision, unless the parties agree otherwise; and

  • (c) be commercially fair and reasonable to the parties.

• Marginal note:Decision binding

  (2) The arbitrator’s decision is final and binding on the parties and is deemed, for the purposes of Division IV of Part III and its enforceability between the parties, to be a confidential contract.

• Marginal note:Period for making decision

  (3) The arbitrator’s decision must be made within 45 days after the day on which the matters are submitted to the Agency for arbitration under subsection 169.31(1) unless in the arbitrator’s opinion making a decision within that period is not practical, in which case the arbitrator must make his or her decision within 65 days after that day.

• Marginal note:Period — agreement of parties

  (4) Despite subsection (3), the arbitrator may, with the agreement of the parties, make his or her decision within a period that is longer than 65 days after the day on which the matters are submitted to the Agency for arbitration.

• Marginal note:Copy of decision to Agency

  (5) The arbitrator must provide the Agency with a copy of his or her decision.