Port Authorities Management Regulations (SOR/99-101)

Privilege

54 An oral or written statement or report made under the Act or these Regulations by the auditor or former auditor of a port authority has qualified privilege.

PART 4Risk Assessment and Insurance

Risk Assessments

• 55 (1) Every port authority and every wholly-owned subsidiary of a port authority shall ensure that, in respect of itself, a risk assessment is conducted by a competent risk assessor and contains an assessment relating to

  • (a) risk, risk management, property value, risk transfer and probable maximum loss;

  • (b) insurance coverage, limits and deductibles; and

  • (c) underwriters.

• (2) The risk assessment shall be completed

  • (a) not later than six months after the day on which the port authority is continued, deemed to be incorporated or incorporated under the Act; and

  • (b) at least every five years after the most recent risk assessment.

• (3) The board of directors of every port authority and of each of the wholly-owned subsidiaries of a port authority shall

  • (a) review each risk assessment report within 30 days after it is received by the port authority or the subsidiary; and

  • (b) approve the insurance coverage annually.

• (4) In conducting a risk assessment, a risk assessor may, if acting reasonably and in good faith, rely on risk assessments conducted in respect of the property, liabilities and activities referred to in subsection 56(1).

Property and Liability Insurance

• 56 (1) Every port authority and every wholly-owned subsidiary of a port authority shall ensure that insurance is maintained in accordance with subsection (2) in respect of

  • (a) the property that the port authority or subsidiary manages, holds, owns or occupies; and

  • (b) liability for the activities in which the port authority or subsidiary engages and for the activities that take place in the port.

• (2) The insurance shall

  • (a) name the port authority or the wholly-owned subsidiary as the insured party or an additional insured;

  • (b) name Her Majesty in right of Canada as an additional insured;

  • (c) cover the risks and have limits and deductibles that

    • (i) a prudent person in the position of owner of the property or a prudent person engaging in the activities referred to in paragraph (1)(b) would obtain or would require to be obtained, and

    • (ii) take into account the most recent risk assessment conducted under section 55; and

  • (d) be maintained with an underwriter that a prudent person in the position of owner of the property or a prudent person engaging in the activities referred to in paragraph (1)(b) would choose or require to be chosen, taking into account the most recent risk assessment conducted under section 55.

Directors and Officers Liability Insurance

• 57 (1) Every port authority shall purchase and maintain insurance in accordance with subsection (3) for the benefit of itself and Her Majesty in right of Canada against liabilities incurred by it in respect of an indemnity given under subsection 25(1) or an advance given under subsection 28(1).

• (2) Every port authority and every wholly-owned subsidiary of a port authority shall ensure that insurance is purchased and maintained in accordance with subsection (3) for the benefit of both of them and Her Majesty in right of Canada against liabilities incurred by the subsidiary in respect of an indemnity or advance given by the subsidiary to

  • (a) a former or current director or officer of the subsidiary for liabilities incurred by the director or officer because of being or having been a director or officer of the subsidiary; or

  • (b) a person who, at the request of the subsidiary, has acted or is acting as a director or officer of another entity or has acted or is acting in a capacity similar to that of a director or officer of another entity for liabilities incurred by the person because of so acting.

• (3) The insurance shall

  • (a) cover the risks and have limits and deductibles that

    • (i) would be obtained by a prudent person in the position of the port authority or subsidiary, and

    • (ii) take into account the most recent risk assessment conducted under section 55; and

  • (b) be maintained with an underwriter that a prudent person in the position of the port authority or subsidiary would choose, taking into account the most recent risk assessment conducted under section 55.

• 58 (1) A port authority may purchase and maintain insurance for the benefit of

  • (a) its former and current directors and officers against any liability incurred by them because of having been or being a director or officer of the port authority;

  • (b) the former and current directors and officers of its wholly-owned subsidiaries against any liability incurred by them because of having been or being a director or officer of the subsidiary; and

  • (c) any person who, at the request of the port authority, has acted or is acting as a director or officer of another entity or has acted or is acting in a capacity similar to that of a director or officer of another entity for any liability incurred by the person because of so acting.

• (2) The insurance shall cover only situations in which a person mentioned in subsection (1) acted honestly and in good faith with a view to the best interests of the port authority or the subsidiary, as the case may be.

PART 5Crown Indemnity

• 59 (1) A port authority shall indemnify Her Majesty in right of Canada for any action, claim or demand brought against, discharged or satisfied by Her Majesty, or any liability, obligation, loss, damage, cost or expense incurred, discharged or satisfied by Her Majesty because the port authority acted, or in consequence of the port authority acting, as agent of Her Majesty, including, without limiting the generality of the foregoing, an action, claim, demand, liability, obligation, loss, damage, cost or expense arising

  • (a) by or through the acts or omissions of the employees, agents, contractors, tenants or invitees of the port authority or those of any other person; or

  • (b) in respect of a judgment or decision that Her Majesty satisfies, in whole or in part, under subsection 23(1) of the Act.

• (2) Subsection (1) applies if the action, claim, demand, liability, obligation, loss, damage, cost or expense arises

  • (a) from the port authority’s exercise of, or its failure to exercise, any power or right under the Act, the regulations under the Act or its letters patent; or

  • (b) by operation of law or otherwise, in respect of the operation of the port, including the management, using, occupying, leasing or licensing of federal real property.

• (3) Subsection (1) does not apply if the action, claim, demand, liability, obligation, loss, damage, cost or expense is in respect of

  • (a) the administration, by the Minister, of the Act or the letters patent; or

  • (b) an agreement or contract between Her Majesty and the port authority, except as provided in the agreement or contract.

• (4) The Minister shall provide to the port authority notice of any action, claim, demand, liability, obligation, loss, damage, cost or expense for which the port authority is to indemnify Her Majesty and

  • (a) in the case of federal real property, the port authority shall undertake and defend any legal proceedings with respect to that property, as required by paragraph 45(1)(c) of the Act; and

  • (b) in any other case, the Minister shall provide to the port authority an opportunity, in consultation with the Minister and subject to the terms and conditions that the Minister may specify, to assume control of any negotiations, settlement or defence and to discharge or satisfy the action, claim, demand, liability, obligation, loss, damage, cost or expense.

PART 5.1Amalgamation

• 59.1 (1) The Governor in Council may, by issuing a certificate of intent to amalgamate, require two or more port authorities to amalgamate and continue as one port authority in accordance with the certificate and may, at any time after the period set out in subsection (2), amalgamate the port authorities by issuing a certificate of amalgamation.

• (2) A notice of the certificate of intent to amalgamate shall be published in at least one major newspaper that is published or distributed in the municipalities where the ports managed by a port authority specified in the certificate are situated. The notice shall state that interested persons may, in accordance with the notice, make written representations to the Minister within 30 days after the day on which the notice is published.

59.2 A port authority specified in a certificate of intent to amalgamate may, for the purposes of the amalgamation, disclose personal information about its employees to any other port authority specified in the certificate.

• 59.3 (1) The Governor in Council may revoke a certificate of intent to amalgamate by issuing a certificate of revocation of intent to amalgamate at any time before the certificate of amalgamation is issued.

• (2) A notice of the certificate of revocation of intent to amalgamate shall be published in at least one major newspaper that is published or distributed in the municipalities where the ports managed by a port authority specified in the certificate of intent to amalgamate are situated. If possible, the notice shall be published in the same newspapers as the notice of the certificate of intent to amalgamate.

• (3) The revocation takes effect on the date set out in the certificate of revocation of intent to amalgamate.

59.4 A certificate of intent to amalgamate and, if applicable, a certificate of revocation of intent to amalgamate shall be sent to each port authority specified in the certificate.

59.5 A certificate of amalgamation shall specify the day on which the amalgamation takes effect and contain the letters patent of the amalgamated port authority, which include the information set out in subsection 8(2) of the Act.

59.6 Any certificate issued under this Part shall be published in the Canada Gazette.

59.7 On the day on which an amalgamation takes effect

• (a) every director of an amalgamating port authority who remains in office continues as a director of the amalgamated port authority for the balance of their term or until they cease to hold office in accordance with subsection 19(1) of the Act;

• (b) the navigable waters within the jurisdiction of each amalgamating port authority continue to be within the jurisdiction of the amalgamated port authority;

• (c) the property, rights and interests of each amalgamating port authority continue to be the property, rights and interests of the amalgamated port authority;

• (d) the management of any federal real property or federal immovable that the Minister has given to an amalgamating port authority under subsection 44(2) of the Act continues to be given to the amalgamated port authority;

• (e) the real property or immovables occupied by each amalgamating port authority continue to be occupied by the amalgamated port authority;

• (f) the amalgamated port authority continues to be liable for the obligations of each amalgamating port authority;

• (g) an existing cause of action, claim or liability to prosecution is unaffected;

• (h) a civil, criminal or administrative action or proceeding pending by or against an amalgamating port authority may be continued to be prosecuted by or against the amalgamated port authority;

• (i) a conviction against, or ruling, order or judgment in favour of or against, an amalgamating port authority may be enforced by or against the amalgamated port authority;

• (j) every fee fixed by an amalgamating port authority continues in force until the expiry date specified in the provision that fixes the fee or until the amalgamated port authority repeals that provision or replaces the fee; and

• (k) the letters patent contained in the certificate of amalgamation are the letters patent of the amalgamated port authority.

59.8 An amalgamation does not constitute a disposition of the property, rights and interests of an amalgamating port authority to the amalgamated port authority.

PART 6Liquidation and Dissolution

Interpretation

60 In this Part, the court having jurisdiction is the court in the place where the port authority has its registered office.