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S.M. 2000, c. 17
THE PROVINCIAL RAILWAYS AMENDMENT ACT
(Assented to August 18, 2000)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The Provincial Railways Act is amended by this Act.
Subsection 13(1) is amended
(a) by adding the following after clause (d):
(d.1) the sale process contemplated in section 34.2;
(d.2) sale offers, sales and appraisals under section 34.3;
(b) in clause (e), by adding "34.3 or" after "section".
Subsection 30(1) is repealed and the following is substituted:
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.
Subsection 30(2) of the English version is amended by striking out "licensee" and substituting "holder".
The following is added after subsection 30(2):
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.
The centred heading before section 33 and sections 33 and 34 are repealed and the following is substituted:
DISCONTINUING THE OPERATION OF A RAILWAY LINE
Definition of "discontinue the operation of a railway line"
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
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
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
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.
Sale, etc. void without approval to discontinue
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.
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 »)
Compliance with steps for discontinuance
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
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
A notice of application published under subsection (2) shall be in a form acceptable to the board.
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
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.
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.
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.
The licence holder shall negotiate with an interested person in good faith and in accordance with the process it discloses.
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
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
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.
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
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 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
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
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.
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
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
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
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.
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.
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.
The determination of the independent appraiser is final and binding on the parties.
The costs of the appraiser shall be borne equally between the two parties.
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
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
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
Subsection 48(1) is amended by adding the following after clause (j):
(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);
This Act applies to every holder of a licence issued under The Provincial Railways Act, whether the licence is issued before or after this Act comes into force.
This Act comes into force on the day it receives royal assent.