Canada Transportation Act (S.C. 1996, c. 10)

Marginal note:Amount to be fixed

• 152.2 (1) If, pursuant to an application made under subsection 152.1(1), the Agency fixes the amount to be paid by the public passenger service provider for the use of any of the railway company’s railway, land, equipment, facilities or services, that amount must reflect the cost associated with the public passenger service provider’s use of that railway, land or equipment or those facilities or services.

• Marginal note:Factors

  (2) In determining that amount, the Agency must take into consideration, among other things,

  • (a) the variable costs incurred by the railway company as a result of the public passenger service provider’s use of the railway company’s railway, land, equipment, facilities or services, including, but not limited to, its variable costs incurred to maintain safe operations and to avoid congestion and undue delay;

  • (b) the railway company’s cost of capital, based on a rate set by the Agency, applied to the net book value of the assets to be used by the public passenger service provider, less any amount to be paid by the public passenger service provider in respect of those assets;

  • (c) the cost of any improvements made by the railway company in relation to the public passenger service provider’s use of the railway company’s railway, land, equipment, facilities or services;

  • (d) a reasonable contribution towards the railway company’s constant costs; and

  • (e) the value of any benefits that would accrue to the railway company from any investment made by the public passenger service provider.

Marginal note:Duration of decision

152.3 Any decision of the Agency in respect of an application made under subsection 152.1(1) is binding on the parties for a period of five years after the day on which the decision is made, or for any other period agreed to by the parties that is specified in the decision.

Agreements

Marginal note:Providing copies

• 152.4 (1) A railway company or a public passenger service provider must provide to any person who requests it

  • (a) a copy of any agreement entered into on or after the day on which this section comes into force concerning the use of the railway company’s railway, land, equipment, facilities or services; and

  • (b) subject to subsection (2), a copy of any agreement entered into before the day on which this section comes into force concerning the use of the railway company’s railway, land, equipment, facilities or services.

• Marginal note:Exclusion

  (2) The Agency may, on application by a railway company or a public passenger service provider, exclude an agreement, or any specified portion of an agreement, from the application of paragraph (1)(b) on the grounds that harm would likely result to the applicant if the agreement, or the specified portion, were to be disclosed.

DIVISION VI.2Liability and Compensation in Case of Railway Accidents Involving Designated Goods

Interpretation and Application

Marginal note:Definitions

152.5 The following definitions apply in this Division.

designated good

designated good means

• (a) crude oil; or

• (b) any other good that is designated by the regulations. (marchandise désignée)

Fund

Fund means the Fund for Railway Accidents Involving Designated Goods established by subsection 153.4(1). (Caisse)

railway accident

railway accident means any accident or incident that is associated with the operation,

• (a) on a railway, whether or not that railway is within the legislative authority of Parliament, by a railway company, of rolling stock that contains a designated good that the company carries on a shipper’s behalf; or

• (b) on a railway, by a person other than a railway company, of rolling stock that contains a designated good that the person carries on behalf of a person who sends or receives goods. (accident ferroviaire)

Marginal note:Application

152.6 This Division applies only to a railway company that holds a certificate of fitness that was issued under paragraph 92(1)(b) in respect of the operation of a railway for which that certificate was issued.

Liability

Marginal note:Limit of liability of railway company

• 152.7 (1) A railway company that operates a railway that is involved in a railway accident is liable for the losses, damages, costs and expenses described in subsection 153(1) up to the amount of the minimum liability insurance coverage that the company is required to maintain for the operation of the railway under paragraph 93.1(1)(b).

• Marginal note:Liability — jointly and severally, or solidarily

  (2) If more than one railway company is liable under subsection (1), the companies are jointly and severally, or solidarily, liable, each up to the amount of the minimum liability insurance coverage that applies to it.

• Marginal note:Non-application

  (3) The limit of liability referred to in subsection (1) does not apply to the railway company if it is proved that the railway accident resulted from any act or omission of that company that was committed either with intent to cause the accident or recklessly and with the knowledge that the accident would probably result.

Marginal note:No proof of fault or negligence

152.8 A railway company’s liability under subsection 152.7(1) does not depend on proof of fault or negligence.

Marginal note:Liability under another Act

152.9 If a railway company is liable, without proof of fault or negligence, under subsection 152.7(1) and under any other Act with respect to the same railway accident, the company is liable under that subsection up to the greater of the limit of liability for an amount that is referred to in that subsection and the limit up to which the company is liable under the other Act. If the other Act does not set out a limit of liability, the limit set out in that subsection does not apply.

Marginal note:Losses, damages, costs and expenses

• 153 (1) The losses, damages, costs and expenses referred to in subsection 152.7(1) are the following:

  • (a) all actual loss or damage incurred by any person, other than by a railway company that is liable under subsection 152.7(1), as a result of the railway accident or as a result of any action or measures taken in relation to the accident;

  • (b) the costs and expenses reasonably incurred by Her Majesty in right of Canada or a province or any other person in taking any action or measures in relation to the railway accident; and

  • (c) all loss of non-use value relating to a public resource that is affected by the railway accident or as a result of any action or measures taken in relation to the accident.

• Definition of actual loss or damage

  (2) For the purposes of paragraph (1)(a), actual loss or damage includes loss of income, including future income, and, with respect to any Aboriginal peoples of Canada, loss of hunting, fishing and gathering opportunities. It does not include

  • (a) any loss or damage incurred by a person who operates a railway that is not within the legislative authority of Parliament and that is involved in the railway accident, in respect of the portion of the operation that does not relate to a passenger rail service;

  • (b) any loss of or damage to goods being carried by the railway company or by the person referred to in paragraph (a); or

  • (c) any loss of income that is recoverable under subsection 42(3) of the Fisheries Act.

• Marginal note:Environmental damage

  (3) For the purposes of subsection (1), the measures include remedial measures that are taken to repair, reduce or mitigate environmental damage.

• Marginal note:Costs and expenses not recoverable under Fisheries Act

  (4) The costs and expenses that are recoverable by Her Majesty in right of Canada or a province under this Division are not recoverable under subsection 42(1) of the Fisheries Act.

Marginal note:Defences

153.1 A railway company is not liable under subsection 152.7(1) if it establishes that

• (a) the railway accident resulted from an act of war, hostilities, civil war or insurrection; or

• (b) any other defence set out in the regulations applies.

Marginal note:Claims

• 153.2 (1) All claims for the losses, damages, costs and expenses described in subsection 153(1) may be sued for and recovered in any court of competent jurisdiction in Canada.

• Marginal note:Rank of claims

  (2) Claims to recover the losses, damages, costs and expenses described in paragraphs 153(1)(a) and (b) shall rank, without preference, before those to recover a loss of non-use value described in paragraph 153(1)(c).

• Marginal note:Limitation or prescription period

  (3) Proceedings in respect of the claims referred to in subsection (1) may be instituted within a period of three years beginning on the day on which the losses, damages, costs and expenses were incurred but not after a period of six years beginning on the day on which the railway accident occurred.

• Marginal note:Proceedings — loss of non-use value

  (4) Only Her Majesty in right of Canada or a province may institute proceedings to recover a loss of non-use value described in paragraph 153(1)(c).

Marginal note:Railway company’s rights against third parties

153.3 Nothing in this Division shall be construed as limiting or restricting any right of recourse that a railway company may have against another person.

Fund for Railway Accidents Involving Designated Goods

Establishment of Fund

Marginal note:Fund established

• 153.4 (1) There is established in the accounts of Canada an account to be known as the Fund for Railway Accidents Involving Designated Goods.

• Marginal note:Credits

  (2) The following are to be credited to the Fund:

  • (a) every amount credited to the Fund under section 153.5;

  • (b) the amount of every sum credited to the Fund under section 153.6;

  • (c) every amount recovered by the Administrator under paragraph 155(2)(c); and

  • (d) every amount paid under sections 155.7 and 155.8.

• Marginal note:Charges

  (3) The following are to be charged to the Fund:

  • (a) an amount equal to every amount required to repay, in accordance with any terms and conditions specified by the Minister of Finance, an amount charged to the Consolidated Revenue Fund under section 153.6;

  • (b) every amount paid out of the Consolidated Revenue Fund under subsection 154.2(3);

  • (c) every amount paid as a result of subsection 155(1); and

  • (d) the amount of any judgment and any costs awarded as the result of an appeal made under subsection 154.9(2) or section 155.1.

Marginal note:Interest to be credited to Fund

153.5 The Minister of Finance shall cause to be credited to the Fund interest, calculated in the manner and at the rate determined by the Governor in Council, on the balance of that Fund.

Marginal note:Consolidated Revenue Fund

153.6 If the amount to the credit of the Fund is insufficient to pay any amount that is charged to the Fund under any of paragraphs 153.4(3)(b) to (d), the Minister of Finance may, subject to any terms and conditions that he or she considers appropriate, direct that a sum equal to the amount required to be paid be charged to the Consolidated Revenue Fund and credited to the Fund.

Administrator and Deputy Administrator

Marginal note:Appointment of Administrator

• 153.7 (1) The Governor in Council shall appoint an Administrator of the Fund.

• Marginal note:Tenure

  (2) The Administrator is to hold office during good behaviour for a term of not more than five years to be fixed by the Governor in Council, but may be removed for cause by the Governor in Council.

• Marginal note:Reappointment

  (3) The Administrator is eligible for reappointment on the expiry of his or her term of office.

• Marginal note:Continuation in office

  (4) If an Administrator is not appointed to take office on the expiry of the incumbent Administrator’s term, the incumbent continues to hold office until the earlier of the day fixed by the Governor in Council and the day on which a successor is appointed.

Marginal note:Appointment of Deputy Administrator

• 153.8 (1) The Governor in Council may appoint a Deputy Administrator of the Fund.

• Marginal note:Tenure

  (2) The Deputy Administrator is to hold office during good behaviour for a term of not more than five years to be fixed by the Governor in Council, but may be removed for cause by the Governor in Council.

• Marginal note:Reappointment

  (3) The Deputy Administrator is eligible for reappointment on the expiry of his or her term of office.

Marginal note:Deputy Administrator’s powers, duties and functions

• 153.9 (1) The Deputy Administrator is to exercise the powers and perform the duties and functions consistent with this Division that are assigned to him or her by the Administrator.

• Marginal note:Administrator’s absence or incapacity

  (2) If the Administrator is absent or incapacitated or the office of Administrator is vacant, the Deputy Administrator has all the powers, duties and functions of the Administrator.

Marginal note:Resignation

154 The resignation of an Administrator or Deputy Administrator becomes effective at the time that the Minister receives a written resignation from him or her or at the time specified in the resignation, whichever is later.