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The Provincial Railways Act
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This version is current as of March 20, 2019.
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C.C.S.M. c. R15

The Provincial Railways Act

(Assented to July 5, 1994)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

INTERPRETATION AND APPLICATION

Definitions

1(1)        In this Act,

"alteration", when used with reference to a railway line, includes an extension of the railway line, but does not include routine repairs or maintenance of that line; (« modification »)

"approval" means an approval under section 32, 33 or 44 and includes an approval referred to in any of those sections that is issued in response to an appeal under section 27; (« autorisation »)

"Canadian Transportation Agency" means the Canadian Transportation Agency continued under subsection 7(1) of the Canada Transportation Act; (« Office des transports du Canada »)

"confidential contract" means a contract referred to in section 39; (« contrat confidentiel »)

"highway" means any public road, street, lane, or other public way or communication; (« route »)

"licence" means a licence issued under section 30, and includes a licence issued in response to an appeal under section 27; (« permis »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"order" means an order made by the superintendent under section 23, 41 or 43, and includes an order referred to in any of those sections that is made in response to an appeal under section 27; (« ordre »)

"person" includes a partnership; (« personne »)

"railway" means a railway, to which the legislative authority of the province extends, that a railway company owns, or proposes or is authorized to construct or operate and includes all railway lines, sidings, stations, depots, wharves, rolling stock, equipment, stores, real and personal property and works connected with the railway and any bridge, tunnel or other structure that the railway company owns or proposes or is authorized to construct; (« chemin de fer »)

"railway company" means a person who owns or who proposes or is authorized to construct or operate a railway; (« compagnie ferroviaire »)

"railway line" means the track, land and structure on which a railway may be operated; (« ligne de chemin de fer »)

"rate" means any rate, toll, charge or allowance charged or made by a railway company, or on or in respect of a railway operated by a railway company, or by any person on behalf or under the authority or consent of the railway company

(a) in connection with the carriage and transportation of passengers or the carriage, shipment, transportation, care, handling or delivery of goods by rail or for any service incidental to the business of a rail carrier,

(b) in connection with rolling stock, or the use thereof, or anything that is instrumental in or is a facility of carriage, shipment or transportation, irrespective of ownership or of any contract, expressed or implied, with respect to the use thereof,

(c) 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, ferriage, cartage, storage, care, handling or delivery of, or in respect of, goods transported, or in transit, or to be transported,

(d) for the warehousing of goods, wharfage or demurrage or the like, or

(e) in connection with any one or more of the above mentioned objects, separately or conjointly; (« prix »)

"rolling stock" means any locomotive, engine, motor car, tender, snow-plow, flanger, and every description of car or of railway equipment designed for movement on its wheels over or on the rails or tracks of a railway; (« matériel roulant »)

"superintendent" means the Superintendent of Railways appointed under section 14.1; (« surintendant »)

"traffic" means the traffic of passengers, goods and rolling stock. (version anglaise seulement)

Reference to "Act" includes regulations

1(2)        A reference to "this Act" includes the regulations made under this Act.

S.M. 1997, c. 52, s. 16; S.M. 2018, c. 10, Sch. E, s. 2.

Application

2(1)        Subject to subsection (2) and any regulation made under clause 48(1)(b), (c) or (d), this Act applies to

(a) a railway that, on May 10, 1993, was a railway to which the legislative authority of the Parliament of Canada extended, and thereafter ceases to be such a railway and becomes a railway to which the legislative authority of the province extends; and

(b) a railway of a railway company to which the legislative authority of the province extends if

(i) the railway line of the railway is constructed on or after May 10, 1993,

(ii) the railway company commences to operate the railway on or after May 10, 1993, or

(iii) on May 10, 1993 the railway company did not move the traffic of others for compensation, and thereafter began to do so.

Exception

2(2)        This Act does not apply to a railway

(a) that is located wholly within a city, town or village; or

(b) that is operated solely for the purpose of transporting persons for amusement and that does not cross a highway or cross or connect with another railway.

PART 1

GENERAL PROVISIONS AND APPEALS

3 to 5      [Repealed]

S.M. 1997, c. 52, s. 16; S.M. 2018, c. 10, Sch. E, s. 4.

6           Renumbered as section 26.1.

S.M. 2018, c. 10, Sch. E, s. 4.

7 to 14     [Repealed]

S.M. 1997, c. 52, s. 16; S.M. 2000, c. 17, s. 2; S.M. 2018, c. 10, Sch. E, s. 6.

GENERAL PROVISIONS

Superintendent of Railways

14.1(1)     The minister must appoint a person as the Superintendent of Railways for the purposes of this Act.

Superintendent may delegate

14.1(2)     The superintendent may authorize a person in the department administered by the minister to perform any of the superintendent's duties or exercise any of the superintendent's powers under this Act and the regulations.

S.M. 2018, c. 10, Sch. E, s. 7.

Exercise of federal powers

14.2        The superintendent may accept and exercise powers in respect of railways conferred on the superintendent under the Canada Transportation Act or any other federal Act.

S.M. 2018, c. 10, Sch. E, s. 7.

Provincial transportation policy

15          When making a decision or order under this Act, the superintendent and the minister must have regard to all applicable provincial transportation policies declared in the regulations.

S.M. 2018, c. 10, Sch. E, s. 8.

Terms and conditions of licences and approvals

16(1)       The superintendent may make a licence or approval under this Act subject to terms and conditions that the superintendent considers advisable.

Transfer of licence or approval

16(2)       No licence or approval is transferable.

S.M. 2018, c. 10, Sch. E, s. 9.

Refusal of licence or approval

17          The superintendent may refuse to issue a licence or approval to a railway company with respect to a railway if the applicant

(a) does not satisfy the requirements of this Act with respect to

(i) the issue of that licence or approval, or

(ii) any other licence or approval that the superintendent considers ought to be issued in conjunction with that licence or approval; or

(b) is or will, if the licence or approval is issued, be in contravention of this Act, an order under this Act or the terms and conditions of that licence or approval or of any licence or approval issued to the applicant under this Act.

S.M. 2018, c. 10, Sch. E, s. 10.

Suspension or revocation of licence or approval

18          The superintendent may suspend or revoke a licence or approval issued in respect of a railway if the holder is in contravention of this Act, an order under this Act or the terms and conditions of that licence or approval or any licence or approval issued under this Act to the holder.

S.M. 2018, c. 10, Sch. E, s. 11.

19 to 22    [Repealed]

S.M. 2018, c. 10, Sch. E, s. 12.

Compliance and remedial order

23(1)       If a person is in contravention of this Act or a term or condition of a licence or approval, the superintendent may order the person to

(a) comply with this Act or the term or condition of the licence or approval; and

(b) take any measure the superintendent considers necessary to remedy the contravention.

Superintendent's powers on default

23(2)       If the person fails to comply with the order within the time specified in the order or any extension of time granted by the superintendent, the superintendent may do, or cause to be done, anything required by the order.

Right of entry

23(3)       For the purpose of subsection (2), the superintendent or any other person authorized by the superintendent to do the thing may, without committing a trespass, enter on any land of the person in default or any other land that the person in default is entitled to enter.

Recovery of costs

23(4)       The costs incurred by the government in doing or causing to be done anything required by the order, as determined by the superintendent, are a debt due to the government by the person in default.

S.M. 2018, c. 10, Sch. E, s. 13.

Liability of directors and officers of corporation

24(1)       An order made under subsection 23(1) may provide that the persons who were directors and officers of the railway company at the time of the contravention and who knowingly assented to or acquiesced in the contravention are jointly and severally liable with the railway company to pay any expenses incurred as a result of the superintendent's exercise of the powers under subsection 23(2).

Right of contribution

24(2)       Any director or officer who pays any penalty, costs or expenses may in a court of competent jurisdiction recover contribution from the railway company or any other director or officer who is liable, on such basis as the court considers just and reasonable.

S.M. 2018, c. 10, Sch. E, s. 14.

25          [Repealed]

S.M. 2018, c. 10, Sch. E, s. 15.

Filing of decision or order

26          A decision or order made by the superintendent under this Act may be filed in the Court of Queen's Bench, and on being filed it may be enforced in the same manner as a judgment of that court.

S.M. 2018, c. 10, Sch. E, s. 16.

Action for breach of section 36 or 42

26.1        A person who may suffer or has suffered damage by reason of the breach of an obligation under section 36 or 42 may, in a court of competent jurisdiction, bring an action to prevent the damage or to recover damages from the railway company and in the action the court may grant any remedy, by way of injunction, damages or otherwise as it considers appropriate.

Transitional — licences, approvals and orders issued by Motor Transport Board

26.2        On the day this section comes into force, a licence, approval or order that was in effect immediately before that time continues to be in effect as if it had been issued or made by the superintendent or the minister, as the case may be.

S.M. 2018, c. 10, Sch. E, s. 17.

APPEALS

Appeal to minister

27(1)       A person may file a written appeal with the minister within 30 days after the applicable decision or order if the person is affected by any of the following:

(a) the issuance of a licence or approval by the superintendent;

(b) a refusal by the superintendent to issue a licence or approval;

(c) the imposition of terms and conditions in a licence or approval by the superintendent;

(d) any order made by the superintendent.

Disposition of appeal by minister

27(2)       On an appeal under subsection (1), the minister may

(a) quash or vary the decision or order under appeal;

(b) refer the matter back to the superintendent for reconsideration;

(c) make any decision or order that in the minister's opinion ought to have been made by the superintendent; or

(d) dismiss the appeal.

S.M. 2018, c. 10, Sch. E, s. 18.

Appeal does not act as stay of decision or order

28          An appeal filed under section 27 does not stay a decision or order of the superintendent, but the minister may grant a stay — in whole or in part — until the disposition of the appeal.

S.M. 2018, c. 10, Sch. E, s. 18.

PART 2

OPERATION OF RAILWAYS, CONSTRUCTION AND ALTERATION OF RAILWAY LINES AND DISCONTINUANCE OF CARRIAGE OF PASSENGERS OR GOODS

LICENCE TO OPERATE

Licence to operate required

29          No person shall operate a railway except under the authority of a licence issued by the superintendent and held by the railway company that owns the railway.

S.M. 2018, c. 10, Sch. E, s. 19.

Issue of licence

30(1)       The superintendent may issue a licence to operate a railway to a railway company if the superintendent is satisfied that the railway company meets the criteria for fitness to hold a licence set out in the regulations.

Authority and requirements re traffic

30(2)       The holder of a licence is authorized and required to move all traffic by rail unless the licence has a term or condition stating that the holder is authorized or required to move only specified traffic by rail.

Application to amend licence

30(2.1)     The superintendent may amend a licence to add a term stating that the holder is not authorized and required to move specified traffic by rail, if the holder applies for such an amendment and satisfies the superintendent that continuing to require the holder to move that kind of traffic will unreasonably impair the economic viability of the railway.

Railway not operated by owner

30(3)       It is a condition of a licence that its holder not permit any other person to operate the railway unless that other person is named in the licence as a person authorized to operate the railway on behalf of the owner.

S.M. 2000, c. 17, s. 3; S.M. 2018, c. 10, Sch. E, s. 20.

APPROVAL OF CONSTRUCTION OR ALTERATION OF RAILWAY LINES

Approval to construct or alter railway line required

31          No person shall construct or alter a railway line except under and in accordance with an approval issued by the superintendent.

S.M. 2018, c. 10, Sch. E, s. 21.

Issue of approval to construct railway line

32          The superintendent may issue an approval to construct or alter a railway line if

(a) the superintendent is satisfied that the proposed construction or alteration is in the public interest; and

(b) the location of, and plans and specifications for, the construction or alteration of the railway line comply with this Act and are approved by the minister.

S.M. 2018, c. 10, Sch. E, s. 22.

DISCONTINUING THE OPERATION OF A RAILWAY LINE

Definition of "discontinue the operation of a railway line"

33(1)       In this section and sections 34, 34.2 and 34.3, "discontinue the operation of a railway line" means cease to move, on all or part of the length of a railway line, all traffic that the holder of a licence is authorized and required to move under the licence.

Approval required for discontinuance of operation

33(2)       No holder of a licence shall discontinue the operation of a railway line without the approval of the superintendent.

Application and basis for approval to discontinue

33(3)       On application by the holder of a licence, the superintendent shall approve the discontinuance if the superintendent is satisfied that

(a) the discontinuance is for the purpose of selling, leasing or otherwise transferring the line, or the holder's operating interest in it, to another railway company that will continue to operate the line; or

(b) the holder has complied with sections 34.2 and 34.3.

Discontinuance and disposition of railway line

33(4)       If the holder of a licence has obtained approval under subsection (3) to discontinue operating a railway line, the holder may, subject to complying with any terms or conditions imposed on the approval under subsection 16(1), discontinue operating the line and dispose of the line or its operating interest in the line.

S.M. 2000, c. 17, s. 4; S.M. 2018, c. 10, Sch. E, s. 23.

Sale, etc. void without approval to discontinue

34          A sale, lease or other transfer of a railway line or an operating interest in a railway line by the holder of a licence is void unless the holder receives approval under section 33 to discontinue operating the railway line.

S.M. 2000, c. 17, s. 4; S.M. 2018, c. 10, Sch. E, s. 24.

Definitions

34.1        In this section and sections 34.2 and 34.3,

"band" and "reserve" have the same meanings as in the Indian Act (Canada); (« bande » et « réserve »)

"band council" has the same meaning as "council of the band" in the Indian Act (Canada); (« conseil de bande »)

"municipality", in relation to

(a) an area of land in the province, includes a reserve,

(b) the local government of a municipality, includes the band council of a reserve, and

(c) a municipal corporation, includes a band; (« municipalité »)

"related infrastructure", in relation to a railway line, includes

(a) all sidings owned by the holder of a licence that are connected to the line and necessary to its viable operation, and

(b) all real property owned by the holder of a licence that is adjacent to the line and necessary to its viable operation. (« infrastructure connexe »)

S.M. 2000, c. 17, s. 4.

Compliance with steps for discontinuance

34.2(1)     The holder of a licence shall comply with the steps described in this section and section 34.3 before doing either or both of the following:

(a) completing the sale, lease or other transfer of a railway line, or its operating interest in a railway line, other than a sale, lease or other transfer to another railway company that will continue to operate the line;

(b) discontinuing the operation of a railway line.

Publication of notice of application

34.2(2)     The holder of a licence shall publish a notice of its application to the superintendent under section 33 in a newspaper with general circulation in each of the municipalities through which a railway line passes.

Form of notice to be acceptable to the superintendent

34.2(3)     A notice of application published under subsection (2) shall be in a form acceptable to the superintendent.

60-day waiting period

34.2(4)     No steps shall be taken under subsections (6) to (11) and section 34.3 until at least 60 days after publication under subsection (2).

Advertisement of availability of railway line for continued operation

34.2(5)     Without delay after the waiting period, the licence holder shall, in the manner specified by the superintendent, advertise

(a) the availability of the railway line and the line's related infrastructure, or of its operating interest in the line, for sale, lease or other transfer for continued operation; and

(b) its intention to discontinue operating the railway line if the line or interest is not sold, leased or otherwise transferred.

Content of advertisement

34.2(6)     The advertisement must include

(a) a description of the railway line and the line's related infrastructure, and how it or the operating interest is to be transferred, whether by sale, lease or otherwise;

(b) an outline of the steps that must be taken before the operation of the railway line may be discontinued;

(c) a statement that the advertisement is directed to persons interested in buying, leasing or otherwise acquiring the railway line and the line's related infrastructure, or the licence holder's operating interest in the line, for the purpose of continued operation; and

(d) the date by which interested persons must make their interest known to the licence holder in writing, which must be at least 30 days after the first publication of the advertisement.

Disclosure of process

34.2(7)     The licence holder shall disclose, to each person who makes his or her interest known in accordance with the advertisement, the process it intends to follow for receiving and evaluating offers.

Negotiation in good faith

34.2(8)     The licence holder shall negotiate with an interested person in good faith and in accordance with the process it discloses.

Period for reaching agreement

34.2(9)     The licence holder has 90 days to reach an agreement with an interested person after the final date stated in the advertisement for interested persons to make their interest known.

Superintendent may extend period for reaching agreement

34.2(10)    The superintendent may, on application by the licence holder or the interested person with whom the licence holder is negotiating, extend the period for reaching agreement

(a) by any period that the licence holder and interested person agree on; or

(b) by up to 90 days, if the licence holder and the interested person cannot agree on the length of the extension but the superintendent is satisfied that they are involved in on-going negotiations in good faith that may result in an agreement.

Decision to continue operation of railway line

34.2(11)    If no agreement is reached within the period for reaching agreement, the licence holder may decide to continue the operation of the railway line, in which case it is not required to comply with section 34.3.

S.M. 2000, c. 17, s. 4; S.M. 2018, c. 10, Sch. E, s. 25.

Offer to governments

34.3(1)     The holder of the licence shall offer to transfer all of its interest in the railway line and the line's related infrastructure to the governments mentioned in this section for not more than the net salvage value of the line and related infrastructure, to be used for any purpose, if

(a) no interested person makes his or her interest known to the holder by the date set under clause 34.2(6)(d);

(b) no agreement with an interested person is reached within the period for reaching agreement; or

(c) an agreement is reached within the period for reaching agreement, but the transfer is not completed in accordance with the agreement.

Which governments receive offer

34.3(2)     After the requirement to make the offer arises, the licence holder shall send it simultaneously

(a) to the minister;

(b) to the senior administrative officer of the local government of each municipality through whose territory the railway line passes; and

(c) to the Minister of Aboriginal and Northern Affairs, if the railway line passes through a part of Northern Manitoba, as defined in The Northern Affairs Act, that is not part of a reserve.

Time limit for acceptance by Manitoba

34.3(3)     The Government of Manitoba may accept the offer in writing within 30 days after it is first received by either of the ministers mentioned in subsection (2).

Time limit for acceptance by a municipality

34.3(4)     If the offer is not accepted by the Government of Manitoba within the 30 days mentioned in subsection (3), a municipality that receives the offer may accept it in writing within the next 30 days.

Deposit

34.3(5)     When the Government of Manitoba or a municipality accepts the offer, it shall provide a deposit of 5% of the net salvage value set out in the offer or $25,000., whichever is less.

Deposit to be held in trust

34.3(6)     The deposit shall be held in trust for the parties under the deposit conditions set out in the regulations.

Acceptance not binding without deposit

34.3(7)     If the government or municipality fails to provide the deposit, the acceptance is not binding on the licence holder.

Communication and notice of acceptance

34.3(8)     When the Government of Manitoba or a municipality accepts the offer in writing and provides the required deposit, the right of any other recipient of the offer to accept it is extinguished, and the licence holder shall notify the other recipients of the acceptance.

Net salvage value

34.3(9)     If the government or a municipality accepts the offer but cannot agree with the licence holder on the net salvage value within 30 days after the acceptance, the determination of net salvage value shall be referred to an independent appraiser agreed to by the parties.

Appraisal

34.3(10)    The independent appraiser shall investigate the matter and determine the net salvage value within 90 days after the matter is referred, or such greater time period as may be agreed upon by the parties.

Binding determination

34.3(11)    The determination of the independent appraiser is final and binding on the parties.

Costs

34.3(12)    The costs of the appraiser shall be borne equally between the two parties.

No agreement

34.3(13)    If the parties are unable to agree on an independent appraiser to determine net salvage value, the superintendent must, on the written request of one of the parties, refer the matter for arbitration. The arbitrator shall determine the net salvage value.

Canadian Transportation Agency as arbitrator

34.3(14)    The superintendent must refer an arbitration under subsection (13) to the Canadian Transportation Agency if

(a) either of the parties requests that the reference be made to that agency; and

(b) that agency is prepared to accept the reference.

Arbitrator other than Canadian Transportation Agency

34.3(14.1)   If no party requests the Canadian Transportation Agency to conduct the arbitration, or if that agency is not prepared to conduct the arbitration, the arbitration must be conducted

(a) by an arbitrator agreed to by the parties; or

(b) if the parties cannot agree to an arbitrator, by a panel of three arbitrators chosen as follows:

(i) one arbitrator chosen by the first party,

(ii) one arbitrator chosen by the second party,

(iii) one arbitrator jointly chosen by the two arbitrators chosen under subclauses (i) and (ii).

Application of certain provisions of section 40

34.3(15)    The following provisions of section 40 apply, with necessary modifications, to an arbitration reference under subsection (13):

(a) subsections 40(3) and (4);

(b) clauses 40(5)(a) and (b);

(c) clause 40(6)(a); and

(d) subsection 40(8).

S.M. 2000, c. 17, s. 4; S.M. 2013, c. 54, s. 62; S.M. 2018, c. 10, Sch. E, s. 26.

PART 3

OBLIGATIONS RESPECTING TRAFFIC, CONDITIONS OF CARRIAGE, CONTRACTS AND RATES

RIGHTS

Rights of railway companies

35          Except as otherwise provided in this Part, a railway company may determine the rates it charges for, and the conditions associated with, the movement of traffic on its railway.

OBLIGATIONS RESPECTING TRAFFIC

Obligations re traffic

36          A railway company shall furnish reasonable accommodation for

(a) the receiving, loading, carriage, delivery and unloading of all traffic of goods of the kind it is required to move under its licence;

(b) the interchange between its railway and other railways, without delay or disadvantage, of all traffic of goods of the kind it is required to move under its licence; and

(c) the return of rolling stock.

CONDITIONS OF CARRIAGE, RATES AND CONFIDENTIAL CONTRACTS

Contracts limiting liability to passengers

37(1)       A railway company shall not limit or restrict its liability to a passenger except in accordance with the regulations.

Contracts limiting liability re goods

37(2)       A railway company shall not limit or restrict its liability to a shipper with respect to the carriage of goods of the shipper except by means of a written agreement signed by the shipper or by an association or other body representative of shippers.

Limits to liability where no agreement

37(3)       In the absence of an agreement referred to in subsection (2), a railway company's liability with respect to the carriage of goods may be limited or restricted only in accordance with the regulations.

S.M. 2018, c. 10, Sch. E, s. 27.

38          [Repealed]

S.M. 2018, c. 10, Sch. E, s. 28.

Confidential contracts

39(1)       A railway company may enter into a contract with a shipper that the parties agree to keep confidential respecting any one or more of the following:

(a) the rate to be charged by the company for the movement of traffic as set out in the contract;

(b) reductions, allowances or rebates pertaining to rates set out in previous tariffs or confidential contracts for the movement of traffic;

(c) any conditions with respect to the movement of traffic by the railway company;

(d) the manner in which the obligations of the railway company as a carrier under section 36 will be fulfilled.

Prohibition on disclosure

39(2)       Neither the superintendent nor any other employee of the government shall disclose any confidential contract or information contained in a confidential contract, other than information that is prescribed by regulation as non-confidential information.

S.M. 2018, c. 10, Sch. E, s. 29.

Request for referral for arbitration

40(1)       A shipper who is dissatisfied with the rate or rates charged or proposed to be charged by a railway company for the movement of goods or with any of the conditions associated with the movement of goods may, where the matter cannot be resolved between the shipper and the carrier, request in writing that the matter be referred by the superintendent for arbitration.

Arbitration precluded in certain cases

40(2)       The superintendent must not refer for arbitration any matter in respect of which a request is made under subsection (1) if the superintendent is of the opinion that an alternative, effective, adequate and competitive means of transporting the goods to which the matter relates is available to the shipper.

Selection of arbitrator

40(3)       The arbitration shall be conducted by an arbitrator

(a) chosen by the parties, if that arbitrator is available to conduct the arbitration; or

(b) chosen by the superintendent, if no arbitrator is chosen by the parties or the arbitrator chosen is, in the opinion of the superintendent, unavailable to conduct the arbitration.

Arbitrator to observe rules

40(4)       In the absence of an agreement by the parties as to the rules for the conduct of the arbitration, an arbitration shall be conducted in accordance with the rules prescribed by regulation.

Decision of arbitrator

40(5)       The decision of the arbitrator shall

(a) be in writing;

(b) unless the parties otherwise agree, be rendered within ninety days after the date on which the matter was referred by the superintendent for arbitration; and

(c) unless the parties otherwise agree, be rendered so as to be applicable in respect of the parties to the arbitration for a period of one year from the date on which the request of the shipper was received by the superintendent or, if the arbitrator considers appropriate, such other period as the arbitrator may fix, having regard to the negotiations between the parties that preceded the arbitration.

Application of decision

40(6)       Except where both parties otherwise agree,

(a) the decision of the arbitrator on an arbitration shall be final and binding and be applicable to the parties as of the date on which the request of the shipper was received by the superintendent from the shipper; and

(b) the arbitrator shall direct in the decision that interest at a reasonable rate specified by the arbitrator shall be paid to one of the parties by the other on money that, as a result of an arbitration under clause (a), is owed by a party for the period between the date referred to in clause (a) and the date of the payment.

Payment by party

40(7)       The money and any interest on that money referred to in clause (6)(b) that are owed by a party pursuant to a decision of the arbitrator shall without delay be paid to the other party.

Arbitrator's fee

40(8)        The superintendent may fix the fee to be paid to an arbitrator for the costs of, and the services provided by, the arbitrator in the arbitration proceedings and the shipper and the carrier shall share in the payment of the fee in equal amounts, whether or not the proceedings are terminated by agreement or otherwise before their conclusion.

Transitional

40(9)       If an arbitration requested before this subsection comes into force is not completed when this subsection comes into force, this section applies as if the request for referral was made to the superintendent, and, if the matter was referred to arbitration before that time, as if it had been referred by the superintendent.

S.M. 2018, c. 10, Sch. E, s. 30.

JOINT RATES

Joint rates

41(1)       Where traffic, other than passengers, is to move over any continuous railway line, portions of which are operated by two or more railway companies, those companies shall, at the request of the shipper intending to move the traffic, agree on

(a) a joint tariff of rates for the continuous route; and

(b) the apportionment of the rate set out in the joint tariff.

Process where no agreement

41(2)       If the railway companies operating a continuous railway line fail to agree on a joint tariff or the apportionment of a rate set out in a joint tariff under subsection (1), the superintendent, on application by any shipper intending to move traffic over that continuous route or portion of that route, may make an order

(a) fixing the joint tariff of rates for the route;

(b) apportioning that rate among the railway companies; and

(c) determining the date any rate fixed under clause (a) comes into effect, which may not be earlier than the date of the application to the superintendent.

S.M. 2018, c. 10, Sch. E, s. 31.

PART 4

RELATIONS BETWEEN RAILWAYS

TRAFFIC OF OTHER RAILWAYS

Obligation re connecting railways

42(1)       A railway company that operates a railway line that forms part of a continuous line of railway with or that intersects any other railway line, or that has any terminus, station or wharf near to any terminus, station or wharf of any other railway line, shall afford all reasonable facilities for delivering to that other railway line, or for receiving from or carrying by its railway line, reasonable traffic, other than passengers, arriving by that other railway line without any unreasonable delay, so that

(a) no obstruction is offered to the public desiring to use those railway lines as a continuous line of transportation; and

(b) all reasonable accommodation, by means of the railway lines of those companies, is at all times afforded to the public for that purpose.

Interpretation of "reasonable" facilities, traffic and accommodation

42(2)       For the purpose of subsection (1), "reasonable" facilities, traffic and accommodation to be provided by a railway company mean reasonable facilities and reasonable accommodation having regard to the traffic, other than passengers, that the railway company is required to move under its licence.

CONNECTIONS

Connections

43          Where

(a) the railway line of one railway company is intersected or crossed by the railway line of another railway company;

(b) a railway company desires to make its railway line intersect or cross those of another railway company; or

(c) the railway lines of two different railway companies run through or into the same industrial area, city, town or village;

the superintendent may, on the application by a railway company or other interested person, order that

(d) the lines of those railways be connected, at or near the point of intersection or crossing or in or near that industrial area, city, town or village, so as to permit, subject to any requirements prescribed in respect of this section,

(i) the convenient transfer of traffic, other than passengers, between the railways of the railway companies, and

(ii) the reasonable receiving, carrying and delivering and, where applicable, interswitching of traffic, other than passengers, between the railways;

(e) the connection be maintained and available for use; and

(f) the cost of making and maintaining the connection be borne by such persons in such proportions as the superintendent may determine.

S.M. 2018, c. 10, Sch. E, s. 32.

PART 5

EXPROPRIATION, ENTRY ONTO LAND, SAFETY CERTIFICATE AND REGULATIONS

EXPROPRIATION

Approval of expropriation required

44(1)       A railway company may, with the approval of the superintendent, expropriate land for railway purposes.

Approval by superintendent

44(2)       The superintendent may approve the expropriation of land by a railway company where the superintendent is satisfied that the land is necessary for the construction, alteration or operation of the railway.

S.M. 2018, c. 10, Sch. E, s. 33.

ENTRY ONTO LAND

Entry onto adjoining land to survey etc.

45(1)       Subject to subsections (3) and (4), a railway company may enter onto land adjacent to its railway line or the route of a proposed railway line for the purpose of

(a) surveying, taking levels, soil samples or borings or doing any other similar thing in connection with the construction or alteration of the railway line; and

(b) constructing, altering or maintaining a railway line.

Entry onto adjoining land to erect snow fences

45(2)       Subject to subsections (3) and (4), in the period commencing on November 1 of a year and ending on April 30 of the following year, a railway company may enter onto land adjacent to a railway line and erect or place and maintain snow fences or snow barriers on it.

Obstruction

45(3)       In the exercise of a power under subsection (1) or (2), a railway company shall not interfere unreasonably with the use of a highway or a private road without the consent

(a) in the case of a highway, of the traffic authority, as defined under The Highway Traffic Act, for that highway; and

(b) in the case of a private road, of the owner of the private road.

Action against railway company

45(4)       Any person who may suffer or has suffered damage by reason of the exercise by a railway company of a right under subsection (1) or (2) may, in a court of competent jurisdiction, bring an action against the railway company to prevent the damage or to recover damages and in the action the court may grant any remedy, by way of injunction, damages or otherwise, as it considers appropriate.

Action by railway company

45(5)       Any railway company that may suffer or has suffered damage by reason of interference by a person with the exercise of a right under subsection (1) or (2) may, in a court of competent jurisdiction, bring an action against the person to prevent the damage or to recover damages and in the action the court may grant any remedy, by way of injunction, damages or otherwise, as it considers appropriate.

SAFETY CERTIFICATE

Definition

46(1)       In this section, "qualified engineer" means a person who is registered or licensed to practise engineering under The Engineering and Geoscientific Professions Act.

Duty of railway company to provide certificate

46(2)       The holder of a licence shall, when required under subsection (3), file with the superintendent a certificate of a qualified engineer certifying that the railway operated by the holder complies with the requirements of this Act with respect to safety.

Requirements re certificate

46(3)       A certificate referred to in subsection (2) shall

(a) be in prescribed form and contain the prescribed information; and

(b) be filed

(i) before the railway is first set in operation under a licence,

(ii) not later than the anniversary of the date of the filing referred to in subclause (i), and

(iii) not later than the date specified by the superintendent in a written notice requiring that a certificate be filed, which notice must be served personally or by registered mail on the holder of the licence.

S.M. 1998, c. 55, s. 72; S.M. 1999, c. 18, s. 21; S.M. 2018, c. 10, Sch. E, s. 34.

Safety certificate

47(1)       No person other than a qualified engineer shall issue a certificate referred to in subsection 46(2).

Prerequisites to issue of certificate

47(2)       A qualified engineer shall not issue a certificate referred to in subsection 46(2) in respect of a railway of a holder of a licence unless the qualified engineer has inspected the railway and reviewed the operating procedures of the holder and found that the requirements of this Act with respect to safety are met.

REGULATIONS

Regulations

48(1)       The Lieutenant Governor in Council may make regulations

(a) for the purpose of a provision of this Act, expanding the definition of railway company to include a railway company that owns or operates a railway to which the legislative authority of a jurisdiction other than the province extends;

(b) where in the opinion of the Lieutenant Governor in Council there is uncertainty as to the application of this Act or The Public Utilities Board Act to a railway, determining the application of those Acts;

(c) despite anything in this Act or any other Act, providing for transitional arrangements in respect of a railway upon the first application of this Act to it;

(d) providing for the exemption of railways or classes of railways from this Act or any provision of this Act;

(e) declaring a provincial policy with respect to railway transportation services and transportation services provided by other modes of transportation as they relate to railway transportation;

(f) requiring and governing the fees and charges to be paid in respect of any application made or any licence, approval or order issued under this Act;

(g) fixing, or determining the manner of fixing, the annual fee that is payable as a term or condition of a licence or approval;

(h) prescribing terms and conditions applicable to licences or approvals and, without limiting the generality of the foregoing, terms and conditions

(i) respecting policies of insurance to be provided and maintained by a railway company,

(ii) requiring and governing the provision of security for the performance of any obligation,

(iii) providing that a licence or approval of a railway company that is incorporated expires upon a change in control of the railway company unless that change of control is approved by the superintendent, and requiring changes or proposed changes in control to be reported, or

(iv) requiring that an annual fee be paid in respect of the licence or approval;

(i) prescribing criteria relating to fitness for the purposes of subsection 30(1);

(j) exempting alterations or classes of alterations for the purpose of section 31;

(j.1) respecting sale offers, sales, appraisals and arbitrations under section 34.3;

(j.2) respecting deposits and deposit conditions under subsections 34.3(5) to (7);

(j.3) requiring a railway company to file with the superintendent a tariff of rates and conditions of carriage for traffic and governing the form, content and manner of filing of that tariff;

(j.4) prescribing any type of information in a confidential contract as non-confidential information;

(j.5) requiring a railway company to file with the superintendent any confidential contract between one or more railway companies and a shipper respecting the carriage of traffic at a rate less than a published rate;

(j.6) requiring a railway company to publish

(i) its tariff of rates for traffic, or

(ii) prescribed non-confidential information in a confidential contract,

and governing the manner of that publication;

(j.7) requiring and governing information returns to be provided by a railway company;

(j.8) prescribing records to be maintained by railway companies and how they are to be maintained;

(j.9) respecting the limitation or restriction of a railway company's liability to a passenger or shipper;

(j.10) prescribing maximum rates that may be charged by a railway company for the movement of traffic or any class of traffic on a railway, but only if the Lieutenant Governor in Council is satisfied that no alternative, effective, adequate and competitive means is available for the movement of that traffic;

(j.11) prescribing rules for the conduct of an arbitration under section 40;

(k) prescribing requirements for the purpose of clause 43(d);

(l) prescribing the form of, and the information to be contained in, a certificate referred to subsection 46(2);

(m) despite any other Act of the Legislature or any regulation thereunder, respecting

(i) the crossing by railway lines of, over or under highways, waterways, drains or the rights-of-way, installations or property of any public utility or any other thing,

(ii) the crossing of, over or under railway lines by highways, waterways, drains or the installations or property of any public utility or any other thing,

(iii) the crossing for farm and other purposes of railway lines by persons across whose land railway lines are constructed, or

(iv) the construction of a railway line and the operation of a railway in, on or along a highway;

(n) governing the safety of railways and their operation;

(o) governing the reporting of accidents;

(p) defining any word or phrase used, but not defined, in this Act;

(q) respecting any matter the Lieutenant Governor considers necessary or advisable to carry out the intent and purpose of this Act.

Incorporation by reference

48(2)       A regulation under subsection (1) may

(a) adopt any statute or regulation of a jurisdiction other than Manitoba or any code, standard or body of rules relating to any matter set out in subsection (1), in whole or in part or with such variations as may be specified in the regulation;

(b) provide that the statute, regulation, code, standard or body of rules is adopted as amended from time to time.

Scope of regulations

48(3)       A regulation under subsection (1) may be specific or general in its application.

S.M. 2000, c. 17, s. 5; S.M. 2004, c. 42, s. 45; S.M. 2018, c. 10, Sch. E, s. 35.

PART 6

ENFORCEMENT, EVIDENCE, OFFENCES AND PENALTIES

INSPECTIONS

Inspectors

49(1)       The minister may appoint any person as an inspector for the purposes of this Act.

Certificate to be furnished

49(2)       The minister shall furnish an inspector with a certificate of appointment.

Certificate to be produced

49(3)       An inspector exercising a power under this Act shall, on request, produce his or her certificate of appointment.

Powers of inspectors

50(1)       An inspector appointed under subsection 49(1) may

(a) at any time enter any place where the inspector believes that any thing relevant to the enforcement of this Act is located;

(b) request the production of any thing that may be relevant to the inspection; and

(c) examine anything found in the place.

Warrant to enter

50(2)       A justice may issue a warrant authorizing an inspector named in the warrant to do anything set out in clause (1)(a), (b) or (c) if the justice is satisfied by information on oath that there are reasonable grounds to believe that

(a) it is necessary to enter the place for the enforcement of this Act; and

(b) an inspector has been, or there are reasonable grounds to believe that an inspector would be, prevented from doing anything described in clause (1)(a), (b) or (c).

Carrying out of warrant

50(3)       An inspector doing anything under the authority of a warrant under this section is authorized, with such peace officers as are required to assist, to enter the place, to take any action that an inspector may take under this Act and to use such force as may be necessary.

Assistance to inspectors

50(4)       The person in charge of a place referred to in clause (1)(a) and any person found in that place shall

(a) give the inspector all reasonable assistance to enable the inspector to carry out his or her functions under this Act; and

(b) furnish the inspector with any information he or she may reasonably require for the enforcement of the Act.

Obstruction of inspectors

50(5)       No person shall hinder, obstruct or interfere with an inspector in the carrying out of his or her functions under this Act.

51          [Repealed]

S.M. 2018, c. 10, Sch. E, s. 36.

OFFENCES AND PENALTIES

Offences

52(1)       A person who

(a) knowingly furnishes false information in, or in connection with, any application under this Act or any return required to be furnished under this Act;

(b) contravenes this Act; or

(c) fails to comply with an order under this Act or a term or condition of a licence or approval issued under this Act;

is guilty of an offence.

Officers and directors

52(2)       Every director, officer or agent of a corporation who knowingly authorizes, acquiesces in or participates in an offence described in subsection (1) is guilty of an offence.

Penalty

52(3)       A person who is guilty of an offence under this section is liable on summary conviction

(a) in the case of an individual, to a fine of not more than $25,000. or to imprisonment for a term of not more than one year; and

(b) in the case of a corporation, to a fine of not more than $50,000.

Limitation re subsection (1)

52(4)       No proceeding under subsection (1) shall be commenced more than one year after the date on which the offence was alleged to have been committed.

PART 7

CONSEQUENTIAL AMENDMENTS, CITATION AND COMING INTO FORCE

53          

NOTE: This section contained consequential amendments to The Public Utilities Board Act that are now included in that Act.

CITATION

C.C.S.M. reference

54          This Act may be cited as The Provincial Railways Act and referred to as chapter R15 of the Continuing Consolidation of the Statutes of Manitoba.

COMING INTO FORCE

Coming into force

55          This Act comes into force on a day fixed by proclamation.

NOTE: S.M. 1993, c. 32 came into force by proclamation on July 1, 1994.