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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 of the board issued under section 32, 34, 37 or 44 or under a regulation; (« autorisation »)

"board" means The Motor Transport Board established under subsection 326(1) of The Highway Traffic Act. (« Commission »)

"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; (« 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 of the board made under this Act; (« ordonnance »)

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

"Public Utilities Board" means The Public Utilities Board continued under The Public Utilities Board Act; (« Régie des services publics »)

"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 »)

"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.

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

JURISDICTION, PROCEDURES, GENERAL PROVISIONS AND APPEALS

JURISDICTION OF BOARD AND COURT

Jurisdiction

3(1)        The board has jurisdiction with respect to matters assigned to it under this Act.

Additional powers of board

3(2)        When it is proposed that a railway to which the legislative authority of the Parliament of Canada extends become a railway to which the legislative authority of the province extends, the powers of the board under this Act may be exercised in respect of that railway to the extent necessary to make this Act effective upon that railway's becoming a railway to which the legislative authority of the province extends.

Joint sittings

4           The board

(a) may hold hearings jointly with the Canadian Transportation Agency or the Public Utilities Board on applications with respect to any matter where the board and the Canadian Transportation Agency or the Public Utilities Board have concurrent legislation for carrying into effect the purposes and objects of a provision of this Act; and

(b) with respect to that matter, may, where it considers appropriate,

(i) exercise any power, including a power to dispose of matters, jointly with the Canadian Transportation Agency or Public Utilities Board, and

(ii) with respect to a railway to which the legislative authority of the Parliament of Canada extends and another railway to which the legislative authority of the province extends and that is governed by this Act, exercise any power that it has with respect to two railways to which the legislative authority of the province extends and that are governed by this Act.

S.M. 1997, c. 52, s. 16.

Powers under Canada Transportation Act etc.

5           The board has capacity to accept and exercise powers in respect of railways to which the legislative authority of the Parliament of Canada extends and that are conferred on it under the Canada Transportation Act or any other Act of the Parliament of Canada.

S.M. 1997, c. 52, s. 16.

Action for breach of section 36 or 42

6           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.

PROCEDURES

Application of Highway Traffic Act

7           Subsections 326(6) to (10), (13) to (15) and (20) to (22) of The Highway Traffic Act apply to the board with such modifications as the circumstances require.

Part V of Evidence Act powers

8           The board has the powers, protection and privileges of a commissioner under Part V of The Manitoba Evidence Act, other than sections 83, 85 and 86, subsection 88(2) and sections 93, 95 and 96.

Evidence

9           The board is not bound by the rules of law respecting evidence applicable to judicial proceedings.

Administration of oaths and affirmations

10(1)       A member of the board has the power to administer oaths and affirmations for the purpose of any of the board's proceedings.

Evidence under oath or affirmation

10(2)       The board may require evidence before it to be given under oath or affirmation.

Maintenance of order at hearing

11          The board may give such directions at a hearing as it considers necessary for the maintenance of order and decorum at the hearing, and, if any person disobeys or fails to comply with such a direction, a board or a member of the board may call for the assistance of a peace officer to enforce the direction, and the peace officer shall take such action as is necessary to enforce the direction and may use such force as is reasonably required for that purpose.

Use of public buildings

12          Subject to the prior rights of the courts and of judicial and administrative officers while engaged in the administration of justice, the board has the same rights as a judge of the Court of Queen's Bench to the use of a court house and other buildings set aside for the administration of justice.

Rule-making powers

13(1)       The board may make rules of practice or procedure with respect to

(a) matters assigned to it under this Act;

(b) joint hearings of the board and the Canadian Transportation Agency or the Public Utilities Board under section 4;

(c) matters arising in the exercise of powers conferred on it under the Canada Transportation Act or any other Act of the Parliament of Canada;

(d) joint hearings by the board and any other board, commission or body established by or under an Act of the Legislature;

(d.1) the sale process contemplated in section 34.2;

(d.2) sale offers, sales and appraisals under section 34.3;

(e) arbitrations under section 34.3 or 40.

Scope of rules under clauses (1)(a) to (d)

13(2)       A rule under clause (1)(a), (b), (c) or (d) may, without limiting the generality of the clause, be made with respect to

(a) applications to the board;

(b) the making of complaints to the board;

(c) the standing of persons;

(d) the parties to proceedings;

(e) notice to, or service on, persons;

(f) the issue of licences and approvals;

(g) the procedure for refusal, suspension or revocation of licences and approvals and the imposition of a penalty in addition to, or instead of, suspension or revocation;

(h) the making of decisions and orders;

(i) the consideration of matters, including the types of matters or circumstances in which hearings are required and the nature of those hearings, so as to facilitate their speedy and effectual determination.

Scope of rules under clause (1)(e)

13(3)       A rule under clause (1)(e) may, without limiting the generality of the clause,

(a) provide for the conduct of arbitrations, including the circumstances in which an arbitration may be terminated by the board or the appointment of an arbitrator may be terminated by the board and another arbitrator appointed; and

(b) provide for the determination of arbitrations.

S.M. 1997, c. 52, s. 16; S.M. 2000, c. 17, s. 2.

Guidelines

14(1)       The board may make guidelines which it may use in making decisions and orders under this Act, but the board is not bound by the guidelines.

Access to guidelines

14(2)       The board shall make any guidelines available for inspection by the public during ordinary business hours.

GENERAL PROVISIONS

Provincial transportation policy

15          In making a decision or order with respect to a matter within its jurisdiction under this Act, the board shall have regard to any declaration of provincial transportation policy prescribed by regulation of the Lieutenant Governor in Council.

Terms and conditions of licences and approvals

16(1)       The board may make a licence or approval under this Act subject to such terms and conditions as are prescribed by regulation of the Lieutenant Governor in Council or imposed by the board.

Transfer of licence or approval

16(2)       No licence or approval is transferable.

Refusal of licence or approval

17          The board 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 board 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.

Suspension or revocation of licence or approval

18          The board 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.

Order subject to terms etc.

19          An order of the board under this Act may be made subject to terms and conditions.

Interim order

20          Instead of making a decision or order final in the first instance, the board may make an interim decision or order.

Power of board re applications

21          In any proceeding before it, the board may make a decision or order refusing an application or granting the whole or part only of any application or may make a further or other decision or order in addition to or in substitution for that applied for, as fully and effectually as if the application had been for that partial, further or other decision or order.

Varying decisions or orders

22          Unless an appeal of a decision or order is pending under section 27, the board may review, confirm, amend, vary or revoke the decision or order or revoke it and make another decision or order in its place.

Compliance and remedial order

23(1)       Where a person is in contravention of this Act, an order under this Act or a term or condition of a licence or approval, the board may

(a) order the person

(i) to comply with this Act, the order or the term or condition of the licence or approval, and

(ii) to take any measures the board considers necessary to remedy the contravention; and

(b) where the person is a railway company, in addition to, or instead of, making an order under clause (a), order the railway company to pay to the government

(i) a penalty not exceeding $50,000.,

(ii) all or part of the costs of any investigation and the proceedings before the board, or

(iii) both the penalty under subclause (i) and the costs under subclause (ii).

Board's power on default

23(2)       If a person fails to comply with an order made under clause (1)(a) within the time specified in the order or any extension of that time ordered by the board, the board may direct another person to do the act or thing ordered to be done and that other person may while so engaged, without committing a trespass, enter on the land of the person against whom the order is made, or the land of any other person whose land the person against whom the order was made is entitled to enter.

Recovery of expenses

23(3)       The expenses incurred by a person directed to do an act or thing under subsection (2) are a debt due to the government by the person who failed to comply with the order made under clause (1)(a), and an order made by the board with respect to the amount of those expenses is conclusive of the amount due to the government.

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

(a) any penalty and costs ordered under clause 23(1)(b); and

(b) any expenses incurred by a person directed to do an act or thing 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.

Costs of parties

25          The board may fix the costs and fees to be taxed, allowed and paid in a proceeding before it.

Filing of decision or order

26          A decision or order made by the board 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.

APPEALS

Appeal

27(1)       An appeal lies from a decision or order of the board to the Court of Appeal on a question of jurisdiction or law, if leave is obtained from a judge of the Court of Appeal.

Application for leave to appeal

27(2)       An application for leave to appeal must be made within 30 days after the person wishing to appeal receives a copy of the decision or order of the board, or within such further time as a judge of the Court of Appeal allows.

Board entitled to be heard

27(3)       The board is entitled to be heard on the argument of an application for leave to appeal and on an appeal.

Decision or order of board not stayed

27(4)       An appeal from a decision or order of the board does not stay the decision or order pending the hearing of the appeal, unless the board or a judge of the Court of Appeal orders otherwise.

Court to certify opinion

27(5)       The Court of Appeal shall certify its opinion to the board, which shall take such steps as are necessary in accordance with the opinion.

Costs on appeal

28(1)       Subject to subsection (2), the Court of Appeal may fix the costs and fees to be taxed, allowed and paid on the appeal.

Exception

28(2)       Neither the board nor any member of the board is liable for payment of costs in respect of an appeal.

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 board and held by the railway company that owns the railway.

Issue of licence

30(1)       The board may issue a licence to operate a railway to a railway company if the board 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 board 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 board 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.

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 board.

Issue of approval to construct railway line

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

(a) it 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.

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 board.

Application and basis for approval to discontinue

33(3)       On application by the holder of a licence, the board shall approve the discontinuance if the board 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 the board's approval to discontinue operating a railway line, the holder may, subject to complying with any terms or conditions the board imposes 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.

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 the board's approval to discontinue operating the railway line.

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

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 board 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 board

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

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 board, 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.

Board may extend period for reaching agreement

34.2(10)    The board 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 board 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.

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 to the board of 5% of the net salvage value set out in the offer or $25,000., whichever is less.

Deposit to be held by the board

34.3(6)     The deposit shall be held by the board 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 to the board, 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 board may, 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 board shall 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.

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.

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 an approval of the board.

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.

Where no agreement

37(3)       In the absence of an agreement under subsection (2), the extent to which a railway company's liability may be limited or restricted with respect to the carriage of goods, and the terms and conditions of the limitation or restriction shall be those

(a) that the board, on the application of the railway company, may order with respect to that carriage; or

(b) prescribed by regulation of the board, where no order under clause (a) has been made with respect to that carriage.

Regulations

38(1)       The board may make regulations

(a) subject to subsection (2), governing the maximum rates that may be charged by a railway company for the movement of traffic or any class of traffic on the railway of that company;

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

(c) prescribing specified information contained in confidential contracts as non-confidential information;

(d) requiring a railway company to publish

(i) its tariff of rates for traffic,

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

and governing the manner of that publication;

(e) requiring and governing information returns to be provided by a railway company;

(f) requiring and governing the keeping and maintenance of records and documents by a railway company;

(g) requiring a railway company to file with the board any confidential contract, or any class of contract, between one or more railway companies and a shipper respecting the carriage of traffic at a rate less than a published rate.

Restriction on setting maximum rates

38(2)       The board may make a regulation under clause (1)(a) only if it is satisfied that no alternative, effective, adequate and competitive means is available for the movement of the traffic to which the regulation relates.

Scope of power

38(3)       A regulation made under subsection (1) may be specific or general in its application.

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 board nor any member of the board or employee of the government shall disclose any confidential contract or information contained in a confidential contract, other than information that is prescribed by regulation of the board under clause 38(1)(c) as non-confidential information.

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 board for arbitration.

Arbitration precluded in certain cases

40(2)       The board shall not refer for arbitration any matter in respect of which a request is made under subsection (1), if the board is of the opinion that

(a) an alternative, effective, adequate and competitive means of transporting the goods to which the matter relates is available to the shipper; or

(b) the matter raises issues that affect the interests of other shippers and that are better dealt with by making a regulation under clause 38(1)(a).

Selection of arbitrator

40(3)       Subject to any rules made under clause 13(1)(e), 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 board, if no arbitrator is chosen by the parties or the arbitrator chosen is, in the opinion of the board, 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 any rules made under clause 13(1)(e).

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 board 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 board 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 board 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 board 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.

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.

Board order where no agreement

41(2)       Where 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 board, 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 dates, no earlier than the date of receipt of the application by the board, when the rates fixed pursuant to clause (a) shall come into effect.

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 board 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 board may determine.

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 board, expropriate land for railway purposes.

Approval by board

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

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 minister 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 minister 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.

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 board, 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);

(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.

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.

EVIDENCE

Certificate of chairman or vice-chairman

51          In a prosecution or proceeding under this Act in which proof is required respecting

(a) a rule, order or decision of the board;

(b) an application under this Act; or

(c) the giving, making, receiving or service of a notice, order or other document;

a certificate purporting to be signed by the chairman, vice-chairman or secretary of the board is admissible in evidence without proof of the signature or official character of the person appearing to have signed the certificate and, in the absence of proof to the contrary, is conclusive proof of the statements contained in the certificate.

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.

 

 


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