Second

Session, 46th General Assembly

Elizabeth II, 2009

BILL 36

AN ACT TO REVISE THE

LAW RESPECTING

RAIL SERVICE

Received and Read the First Time ...................................................................................................

Second Reading .................................................................................................................................

Committee ............................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE

TREVOR TAYLOR

Minister

of Transportation and Works

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTE

This Bill would repeal and replace

the Rail Service Act to revise the

law with respect to the provision of rail services.

A BILL

AN ACT TO REVISE THE LAW RESPECTING

RAIL SERVICE

Analysis

Short title

Definitions

Administration of the Act

Prohibition

Lieutenant-Governor in Council approval

Rail service inspector

Administrative agreements

Delegation

Not an agent of the government

Exchange of information

Application for permit

Issuing a permit

Cancellation of permit

Carriage of goods and passengers of

others

Regulations

Offence and penalty

Offence by a corporation

Limitation period

Fees and forms

Fees to recover costs

SNL1993 cR-1.1 Rep.

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

Act may be cited as the Rail Service Act,

2009 .

Definitions

2. In

this Act

(a) "administrative agreement" means an

agreement under

section 7;

(b) "adopted provision" means a

provision adopted under subsection 15(3) and, where changed under paragraph

15(4)(

a) means the provision as changed under that paragraph;

(c) "authority" means

(ii) another person,

with which the minister has entered into an

administrative agreement;

(d) "minister" means the minister

appointed under the Executive Council Act

to be responsible for this Act;

(e) "permit holder" means a rail

services company that holds a valid permit issued under

section 12;

(f) "rail service" means a rail service

that a company is authorized to construct and operate, and includes all

branches, sidings, stations, depots, wharves, rolling stock, equipment, works,

property and works connected with the rail service and all rail service

bridges, tunnels or other structures connected with the rail service and

undertakings of the company;

(g) "rail service company" means a

company that has been granted an approval under

section 5; and

(h) "rail service inspector" means a

person appointed as a rail service inspector under

section 6.

Administration of

the Act

3. The

minister is charged with the administration of this Act and the regulations

except to the extent that the administration of this Act or the regulations is

delegated to an authority under

section 8.

Prohibition

4. A

person shall not purchase, operate or construct a rail service in the province

without

(

a) an approval of the Lieutenant-Governor in

Council granted under

section 5; and

(

b) a valid permit issued under

section 12.

Lieutenant-Governor

in Council approval

(1) The

Lieutenant-Governor in Council may grant approval for a person to purchase,

Lieutenant-Governor in Council considers appropriate.

(2) The Lieutenant-Governor in Council may amend

(3) The Lieutenant-Governor in Council may

withdraw an approval granted under subsection (1) where the terms and

conditions attached to the approval have not been complied with.

Rail service

inspector

(1) The

minister may appoint a person, including an employee or a contractual agent of

an authority, as a rail service inspector for the purpose of this Act.

(2) A rail service inspector is subject to and has

the powers and obligations set out in the provisions adopted under subsection

(3), or that are prescribed by the regulations.

(3) The minister may adopt by regulation

provisions of the Railway Safety Act

( Canada ) for the purpose of subsection (2) and may prescribe changes to those

provisions.

Administrative

agreements

(1) The

minister may enter into an administrative agreement with an authority to

administer this Act and the regulations.

(2) An administrative agreement shall include

provisions that specify some or all of the following:

(

a) the acceptance by the authority of the

responsibility to administer powers delegated to the authority under

section 8;

(

b) the terms for financial arrangements between

the authority and the government;

(

c) the right of access of the authority to

records created by the government and the right of access of the government to

records created by the authority;

(

d) requirements for the authority to report to

the government on matters related to the operation of powers administered by

the authority under this Act;

(

e) the obligations of the parties where the

agreement is terminated; and

(

f) provisions for the settlement of disputes.

Delegation

(1) Where

the minister enters into an administrative agreement with an authority under

section 7, the Lieutenant-Governor in Council may by regulation, delegate to

the authority the administration of this Act and the regulations except

(

a) the powers of the Lieutenant-Governor in

Council under

section 5;

(

b) the powers of the minister under sections 11,

12, 13 and 14;

(

c) the power to set or charge fees under sections

19 and 20; and

(

d) the power to make regulations under

section

(2) Where an amendment to the regulation making a

delegation under subsection (1) could substantially affect an agreement

referred to in subsection (1), the minister shall give reasonable notice to the

authority of the proposed amendment and shall consult on it with the authority.

(3) Where the Lieutenant-Governor in Council

repeals a regulation under subsection (1), the agreement is terminated.

Not an agent of

the government

9. An

authority to which the administration of this Act and the regulations is

delegated under

section 8 is not an agent of the government for the purpose of

that administration.

Exchange of information

(1) In

this section, "records" includes, but is not limited to, records

regarding a rail service company's compliance or failure to comply with this

Act, the regulations, an approval granted under

section 5, a permit issued

under

section 12 or a permit granted under

section 14.

(2) Where the minister has entered into an

information-sharing agreement with an authority to which the administration of

this Act or the regulations is delegated under

section 8, the minister may

disclose or transfer records to, and share records with, the authority in accordance

with the agreement.

(3) The minister may enter into an

information-sharing agreement of the purpose of subsection (2).

Application for

permit

(1) A

rail service company shall not operate a rail service unless the company has a

valid permit issued under

section 12.

(2) An application to the minister for a permit

shall

(

a) be made in the form and manner approved by the

minister;

(

b) include the information that may be required

by the minister; and

(

c) be accompanied by the application fee set by

the minister.

Issuing a permit

(1) Upon

application, the minister may issue a permit to a rail service company in

accordance with an approval granted under

section 5 where the minister

considers the applicant capable of operating the rail service in a safe manner.

(2) Where the minister issues a permit, the

minister may

(

a) exempt the permit holder from the application

of adopted provisions or from a regulation or part of a regulation made under

section 15 or both; and

the permit.

(3) A permit holder shall comply with

(

a) the adopted provisions that apply to the

permit holder;

permit holder's permit; and

(

c) an order or directive made to the permit

holder by a rail service inspector acting under the authority of a provision

adopted under

section 6.

(4) The minister, by notice in writing, may

(

a) vary or cancel an exemption granted to a

permit holder under paragraph (2)(a); and

(

b) exempt a permit holder from additional adopted

provisions or regulations under paragraph (2)(a).

Cancellation of

permit

(1) A

permit issued under

section 12 remains valid unless it is cancelled or suspended

under this section.

(2) A permit holder's permit is cancelled

automatically on the withdrawal of a permit holder's approval under

section 5.

(3) The minister may cancel or suspend a permit

where

(

a) the permit holder has failed to comply with

this Act or the regulations;

(

b) the permit holder has failed to comply with a

term or condition of the permit holder's permit; or

(

c) the permit holder has failed to comply with an

order or directive made to the permit holder by a rail service inspector acting

under the authority of a provision adopted under

section 6.

(4) Where the minister cancels or suspends a

permit under this section, the minister shall notify the permit holder in

writing of the cancellation or suspension and the notice shall

(

a) advise the permit holder of the reason for the

cancellation or suspension; and

(

b) in the case of a suspension, advise the permit

holder of the term of the suspension.

(5) The minister shall publish in the Gazette a notice of a cancellation or

suspension made under this section.

Carriage of goods

and passengers of others

(1) In

this

section

(a) "charge", when used as a verb with

respect to tolls, includes power to a company to quote, demand, levy, take and

receive and sue for and recover tolls;

(b) "goods" includes personal property

of every description which may be conveyed on a rail service; and

(c) "tolls or rates" means tolls, rates,

charges or allowances charged or made either by a company, or on or in respect

of a rail service owned or operated by the company, or by a person on behalf or

under authority or consent of the company, in connection with the carriage and

transportation of passengers, or the carriage, shipment, transportation, care,

handling or delivery of goods, or for a service incidental to the business of a

carrier, and includes tolls, rates, charges or allowances charged or made

(

i) in connection with the rolling stock or the

use of it, or an instrumentality or facility of carriage, shipment or

transportation, irrespective of ownership or of a contract, expressed or

implied, with respect to the use of them,

(ii) for furnishing passengers with beds or berths

on sleeping cars, or for the collection, receipt, loading, unloading, stopping

over, elevation, ventilation, refrigerating, icing, heating, switching,

cartage, storage, care, handling or delivery of, or in respect of, goods

transported or in transit, or to be transported, and

(iii) for the warehousing of goods, or demurrage, or

the like,

or charged or made in connection with one or

more of the above mentioned objects separately or conjointly.

(2) A rail service company or the conductor or

other person in charge of a rail service owned or operated by a rail service

company is not under an obligation to a person other than the company operating

the rail service to receive or carry a passenger, baggage or goods in or on the

rail service.

(3) A rail service company, conductor or other

person in charge of a rail service described in subsection (2), and the company

owing or operating the rail service, is not liable in damages or in another way

for refusal to receive or carry the passenger, baggage or goods.

(4) Notwithstanding subsection (2) or (3), where

the minister is satisfied that the use of a railway described in subsection

(2) for the carriage of passengers and goods is necessary or desirable in order to

facilitate development of the natural resources or other resources of the provision,

the minister may direct, or grant a permit, in writing to the rail service

company owning the rail service to the person operating the rail service,

requiring or authorizing the company to receive and carry passengers and goods

under this subsection and subsections (5) to (7).

(5) A company that is required, or to which a

permit is granted, under subsection (4), may enter into a contract with a

person for the carriage on its rail service of the person as a passenger, or

with a person for the carriage on its rail service of goods owned by the

person, where

(

a) cars and equipment suitable for the purpose

are used; and

(

b) the cars and equipment have first been

inspected by a rail service inspector and an inspecting engineer authorized and

approved of for the purpose by the minister.

(6) A contact entered into for the purpose of

subsection (5) may

(

a) provide for the

charging and collection of tolls or rates for the carriage of the passenger or

goods;

(

b) limit the liability of the company, its

servants or agents, or exempt the company, its servants or agents, from liability

otherwise existing under this or another Act or at common law, for damage

arising out of the carriage of the passenger or goods under the contract; and

(

c) contain further reasonable terms and

conditions the minister may approve or direct.

(7) A contract has no effect or is considered

insufficient for the purpose of subsections (5) and (6) unless it is

(

a) signed by the person who is carried as a

passenger, or by the person whose goods are carried, or by the agent in that behalf

of the owner of the goods; and

(

b) written or printed in a form and manner

approved by the minister as suitable for bringing its material terms to the attention

of the person signing it.

(8) The minister may, by notice in writing to the

company, revoke a direction given or permit granted to a company under

subsection (4).

(9) Subsections 12(2), (3) and (4) and

section 13

apply with the necessary changes to a permit granted under this section.

(10) A rail service company that is directed by the

minister to receive and carry passengers and goods under subsection (4) shall

comply with the direction of the minister and failure to comply with the

direction may result in the withdrawal of the approval granted under

section 5.

Regulations

(1) The

minister may make regulations

(

a) respecting the regulation

of rail services;

(

b) respecting the operation of a rail service;

(

c) respecting the granting

or issuing of permits and licences;

(

d) respecting the interconnection of rail service

lines;

(

e) adopting provisions

for the purpose of

section 6 and making changes to those provisions;

(

f) providing for the

administration of adopted provisions;

(

g) prescribing the time periods by which rail

service companies shall pay fees charged under

section 20;

(

h) respecting the inspection of rail services by

rail service inspectors;

(

i) respecting matters necessary to allow rail

service inspectors to enforce this Act and the regulations;

(

j) requiring the filing of documents by the rail

service company;

(

k) defining a word or expression used and not

defined in the Act and enlarging or restricting that definition and enlarging

or restricting the definition of "rail service";

(

l) respecting a matter or thing required or

authorized to be prescribed by this Act;

(

m) respecting a matter

or thing the minister considers necessary or advisable to carry out effectively

the intent and purpose of this Act; and

(

n) generally to give

effect to the purpose of this Act.

(2) Regulations made under subsection (1) may be

of general application or may apply only to the rail service or class of rail

services specified in the regulations, and there may be different regulations

with respect to different rail services or different classes of rail services.

(3) The minister may in addition to or instead of

regulations made under subsection (1) adopt by reference and constitute as

regulations in whole or in part or provisions of

(

a) the Railway

Safety Act ( Canada ), the Canadian Transportation

Accident Investigation and Safety Board Act , the Canada Transportation Act , and the Transportation

Appeal Tribunal of Canada Act ;

(

b) a regulation, standard, code, rule or

procedure made under

an Act referred to in paragraph (a); and

(

c) a code or standard regarding railway safety

established by another standard making body

with or without modification and including

amendments and, subject to subsection (2), the adopted provisions apply to rail

service companies and to rail services.

(4) The Lieutenant-Governor in Council may make

regulations for the purpose of

section 8 delegating to an authority the

administration of a provision of this Act or the regulations.

Offence and

penalty

(1) A

person who

(

a) contravenes this Act or the regulations;

(

b) contravenes an adopted provision or fails to

comply with a minister's order or directive made under an adopted provision;

(

c) fails to comply with a term or condition of a

permit issued under this Act;

(

d) fails to comply with

an order or directive of a rail service inspector made under a provision

adopted under

section 6; or

(

e) fails to comply with

a direction of the minister under

section 14

is guilty of an offence.

(2) Where a person, other than a corporation, is

convicted of an offence under subsection (1), he or she is liable to a fine of

not more than $100,000 or to a term of imprisonment not exceeding 18 months, or

to both a fine and imprisonment.

(3) Where a corporation is convicted of an offence

under subsection (1), the corporation is liable to a fine of not more than

$200,000.

(4) Where an offence under this

section or

section

17 is committed or continued on more than one day, the person who committed the

offence is liable to be convicted for a separate offence for each day on which

the offence is committed or continued.

Offence by a corporation

(1) Where

a corporation has been convicted of an offence under

section 16, a director or

officer of the corporation who directed, authorized, permitted or acquiesced in

the offence is guilty of an offence and liable on

summary conviction to the

penalties provided for the offence whether or not the corporation has been

prosecuted or convicted.

(2) In a prosecution for an offence under

subsection (1), it is sufficient proof of the offence to establish that it was

committed by an employee, officer, director or agent of the defendant.

(3) Subsection (2) applies whether or not the

employee, officer, director or agent is identified or has been prosecuted for

the offence, but that subsection does not apply where the defendant establishes

that

(

a) the offence was committed without the defendant's

knowledge or consent; or

(

b) the defendant exercised due diligence to

prevent commission of the offence.

Limitation period

18. A

prosecution under this Act or the regulations shall be started within 2 years

from the date the offence is alleged to have been committed.

Fees and forms

19. The

minister may set fees and establish forms for the purpose of this Act.

Fees to recover

costs

(1) The

minister may charge a rail service company a fee to recover the costs incurred

in respect of the rail service company by the minister under an administrative

agreement.

(2) The minister may charge a rail service company

a fee to recover costs incurred by the minister in addition to the costs

referred to in subsection (1) in respect of the operation and regulation of a

rail service.

(3) A rail service company charged a fee under

subsection (1) or (2) shall pay the fee within the time period prescribed by

the minister.

SNL1993 cR-1.1

Rep.

21. The Rail

Service Act is repealed.

Commencement

22. This Act comes into force on a day to be

proclaimed by the Lieutenant-Governor in Council.

Earl G. Tucker, Queen's Printer