Second Session, 46th General Assembly
58 Elizabeth II, 2009
AN ACT TO REVISE THE
Received and Read the First Time...................................................................................................
HONOURABLE TREVOR TAYLOR
Minister of Transportation and Works
Ordered to be printed by the Honourable House of Assembly
This Bill would repeal and replace the Rail Service Act to revise the law with respect to the provision of rail services.
AN ACT TO REVISE THE LAW RESPECTING
1. Short title
3. Administration of the Act
5. Lieutenant-Governor in Council approval
6. Rail service inspector
7. Administrative agreements
9. Not an agent of the government
10. Exchange of information
11. Application for permit
12. Issuing a permit
13. Cancellation of permit
14. Carriage of goods and passengers of others
16. Offence and penalty
17. Offence by a corporation
18. Limitation period
19. Fees and forms
20. Fees to recover costs
21. SNL1993 cR-1.1 Rep.
Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:
1. This Act may be cited as the Rail Service Act, 2009.
2. In this Act
(a) "administrative agreement" means an agreement under section 7;
(b) "adopted provision" means a provision adopted under subsection 15(3) and, where changed under paragraph 15(4)(a) means the provision as changed under that paragraph;
(c) "authority" means
(i) the Government of
(ii) another person,
with which the minister has entered into an administrative agreement;
(d) "minister" means the minister appointed under the Executive Council Act to be responsible for this Act;
(e) "permit holder" means a rail services company that holds a valid permit issued under section 12;
(f) "rail service" means a rail service that a company is authorized to construct and operate, and includes all branches, sidings, stations, depots, wharves, rolling stock, equipment, works, property and works connected with the rail service and all rail service bridges, tunnels or other structures connected with the rail service and undertakings of the company;
(g) "rail service company" means a company that has been granted an approval under section 5; and
(h) "rail service inspector" means a person appointed as a rail service inspector under section 6.
Administration of the Act
3. The minister is charged with the administration of this Act and the regulations except to the extent that the administration of this Act or the regulations is delegated to an authority under section 8.
4. A person shall not purchase, operate or construct a rail service in the province without
(a) an approval of the Lieutenant-Governor in Council granted under section 5; and
(b) a valid permit issued under section 12.
Lieutenant-Governor in Council approval
5. (1) The Lieutenant-Governor in Council may grant approval for a person to purchase, operate or construct a rail service upon those terms and conditions that the Lieutenant-Governor in Council considers appropriate.
(2) The Lieutenant-Governor in Council may amend the terms and conditions of an approval granted under subsection (1).
(3) The Lieutenant-Governor in Council may withdraw an approval granted under subsection (1) where the terms and conditions attached to the approval have not been complied with.
Rail service inspector
6. (1) The minister may appoint a person, including an employee or a contractual agent of an authority, as a rail service inspector for the purpose of this Act.
(2) A rail service inspector is subject to and has the powers and obligations set out in the provisions adopted under subsection (3), or that are prescribed by the regulations.
(3) The minister may adopt by regulation
provisions of the Railway Safety Act
7. (1) The minister may enter into an administrative agreement with an authority to administer this Act and the regulations.
(2) An administrative agreement shall include provisions that specify some or all of the following:
(a) the acceptance by the authority of the responsibility to administer powers delegated to the authority under section 8;
(b) the terms for financial arrangements between the authority and the government;
(c) the right of access of the authority to records created by the government and the right of access of the government to records created by the authority;
(d) requirements for the authority to report to the government on matters related to the operation of powers administered by the authority under this Act;
(e) the obligations of the parties where the agreement is terminated; and
(f) provisions for the settlement of disputes.
8. (1) Where the minister enters into an administrative agreement with an authority under section 7, the Lieutenant-Governor in Council may by regulation, delegate to the authority the administration of this Act and the regulations except
(a) the powers of the Lieutenant-Governor in Council under section 5;
(b) the powers of the minister under sections 11, 12, 13 and 14;
(c) the power to set or charge fees under sections 19 and 20; and
(d) the power to make regulations under section 15.
(2) Where an amendment to the regulation making a delegation under subsection (1) could substantially affect an agreement referred to in subsection (1), the minister shall give reasonable notice to the authority of the proposed amendment and shall consult on it with the authority.
(3) Where the Lieutenant-Governor in Council repeals a regulation under subsection (1), the agreement is terminated.
Not an agent of the government
9. An authority to which the administration of this Act and the regulations is delegated under section 8 is not an agent of the government for the purpose of that administration.
Exchange of information
10. (1) In this section, "records" includes, but is not limited to, records regarding a rail service company's compliance or failure to comply with this Act, the regulations, an approval granted under section 5, a permit issued under section 12 or a permit granted under section 14.
(2) Where the minister has entered into an information-sharing agreement with an authority to which the administration of this Act or the regulations is delegated under section 8, the minister may disclose or transfer records to, and share records with, the authority in accordance with the agreement.
(3) The minister may enter into an information-sharing agreement of the purpose of subsection (2).
Application for permit
11. (1) A rail service company shall not operate a rail service unless the company has a valid permit issued under section 12.
(2) An application to the minister for a permit shall
(a) be made in the form and manner approved by the minister;
(b) include the information that may be required by the minister; and
(c) be accompanied by the application fee set by the minister.
Issuing a permit
12. (1) Upon application, the minister may issue a permit to a rail service company in accordance with an approval granted under section 5 where the minister considers the applicant capable of operating the rail service in a safe manner.
(2) Where the minister issues a permit, the minister may
(a) exempt the permit holder from the application of adopted provisions or from a regulation or part of a regulation made under section 15 or both; and
(b) establish terms and conditions that apply to the permit.
(3) A permit holder shall comply with
(a) the adopted provisions that apply to the permit holder;
(b) the terms and conditions that apply to the permit holder's permit; and
(c) an order or directive made to the permit holder by a rail service inspector acting under the authority of a provision adopted under section 6.
(4) The minister, by notice in writing, may
(a) vary or cancel an exemption granted to a permit holder under paragraph (2)(a); and
(b) exempt a permit holder from additional adopted provisions or regulations under paragraph (2)(a).
Cancellation of permit
13. (1) A permit issued under section 12 remains valid unless it is cancelled or suspended under this section.
(2) A permit holder's permit is cancelled automatically on the withdrawal of a permit holder's approval under section 5.
(3) The minister may cancel or suspend a permit where
(a) the permit holder has failed to comply with this Act or the regulations;
(b) the permit holder has failed to comply with a term or condition of the permit holder's permit; or
(c) the permit holder has failed to comply with an order or directive made to the permit holder by a rail service inspector acting under the authority of a provision adopted under section 6.
(4) Where the minister cancels or suspends a permit under this section, the minister shall notify the permit holder in writing of the cancellation or suspension and the notice shall
(a) advise the permit holder of the reason for the cancellation or suspension; and
(b) in the case of a suspension, advise the permit holder of the term of the suspension.
(5) The minister shall publish in the Gazette a notice of a cancellation or suspension made under this section.
Carriage of goods and passengers of others
14. (1) In this section
(a) "charge", when used as a verb with respect to tolls, includes power to a company to quote, demand, levy, take and receive and sue for and recover tolls;
(b) "goods" includes personal property of every description which may be conveyed on a rail service; and
(c) "tolls or rates" means tolls, rates, charges or allowances charged or made either by a company, or on or in respect of a rail service owned or operated by the company, or by a person on behalf or under authority or consent of the company, in connection with the carriage and transportation of passengers, or the carriage, shipment, transportation, care, handling or delivery of goods, or for a service incidental to the business of a carrier, and includes tolls, rates, charges or allowances charged or made
(i) in connection with the rolling stock or the use of it, or an instrumentality or facility of carriage, shipment or transportation, irrespective of ownership or of a contract, expressed or implied, with respect to the use of them,
(ii) for furnishing passengers with beds or berths on sleeping cars, or for the collection, receipt, loading, unloading, stopping over, elevation, ventilation, refrigerating, icing, heating, switching, cartage, storage, care, handling or delivery of, or in respect of, goods transported or in transit, or to be transported, and
(iii) for the warehousing of goods, or demurrage, or the like,
or charged or made in connection with one or more of the above mentioned objects separately or conjointly.
(2) A rail service company or the conductor or other person in charge of a rail service owned or operated by a rail service company is not under an obligation to a person other than the company operating the rail service to receive or carry a passenger, baggage or goods in or on the rail service.
(3) A rail service company, conductor or other person in charge of a rail service described in subsection (2), and the company owing or operating the rail service, is not liable in damages or in another way for refusal to receive or carry the passenger, baggage or goods.
(4) Notwithstanding subsection (2) or (3), where the minister is satisfied that the use of a railway described in subsection (2) for the carriage of passengers and goods is necessary or desirable in order to facilitate development of the natural resources or other resources of the provision, the minister may direct, or grant a permit, in writing to the rail service company owning the rail service to the person operating the rail service, requiring or authorizing the company to receive and carry passengers and goods under this subsection and subsections (5) to (7).
(5) A company that is required, or to which a permit is granted, under subsection (4), may enter into a contract with a person for the carriage on its rail service of the person as a passenger, or with a person for the carriage on its rail service of goods owned by the person, where
(a) cars and equipment suitable for the purpose are used; and
(b) the cars and equipment have first been inspected by a rail service inspector and an inspecting engineer authorized and approved of for the purpose by the minister.
(6) A contact entered into for the purpose of subsection (5) may
(a) provide for the charging and collection of tolls or rates for the carriage of the passenger or goods;
(b) limit the liability of the company, its servants or agents, or exempt the company, its servants or agents, from liability otherwise existing under this or another Act or at common law, for damage arising out of the carriage of the passenger or goods under the contract; and
(c) contain further reasonable terms and conditions the minister may approve or direct.
(7) A contract has no effect or is considered insufficient for the purpose of subsections (5) and (6) unless it is
(a) signed by the person who is carried as a passenger, or by the person whose goods are carried, or by the agent in that behalf of the owner of the goods; and
(b) written or printed in a form and manner approved by the minister as suitable for bringing its material terms to the attention of the person signing it.
(8) The minister may, by notice in writing to the company, revoke a direction given or permit granted to a company under subsection (4).
(9) Subsections 12(2), (3) and (4) and section 13 apply with the necessary changes to a permit granted under this section.
(10) A rail service company that is directed by the minister to receive and carry passengers and goods under subsection (4) shall comply with the direction of the minister and failure to comply with the direction may result in the withdrawal of the approval granted under section 5.
15. (1) The minister may make regulations
(a) respecting the regulation of rail services;
(b) respecting the operation of a rail service;
(c) respecting the granting or issuing of permits and licences;
(d) respecting the interconnection of rail service lines;
(e) adopting provisions for the purpose of section 6 and making changes to those provisions;
(f) providing for the administration of adopted provisions;
(g) prescribing the time periods by which rail service companies shall pay fees charged under section 20;
(h) respecting the inspection of rail services by rail service inspectors;
(i) respecting matters necessary to allow rail service inspectors to enforce this Act and the regulations;
(j) requiring the filing of documents by the rail service company;
(k) defining a word or expression used and not defined in the Act and enlarging or restricting that definition and enlarging or restricting the definition of "rail service";
(l) respecting a matter or thing required or authorized to be prescribed by this Act;
(m) respecting a matter or thing the minister considers necessary or advisable to carry out effectively the intent and purpose of this Act; and
(n) generally to give effect to the purpose of this Act.
(2) Regulations made under subsection (1) may be of general application or may apply only to the rail service or class of rail services specified in the regulations, and there may be different regulations with respect to different rail services or different classes of rail services.
(3) The minister may in addition to or instead of regulations made under subsection (1) adopt by reference and constitute as regulations in whole or in part or provisions of
(a) the Railway
Safety Act (
(b) a regulation, standard, code, rule or procedure made under an Act referred to in paragraph (a); and
(c) a code or standard regarding railway safety established by another standard making body
with or without modification and including amendments and, subject to subsection (2), the adopted provisions apply to rail service companies and to rail services.
(4) The Lieutenant-Governor in Council may make regulations for the purpose of section 8 delegating to an authority the administration of a provision of this Act or the regulations.
Offence and penalty
16. (1) A person who
(a) contravenes this Act or the regulations;
(b) contravenes an adopted provision or fails to comply with a minister's order or directive made under an adopted provision;
(c) fails to comply with a term or condition of a permit issued under this Act;
(d) fails to comply with an order or directive of a rail service inspector made under a provision adopted under section 6; or
(e) fails to comply with a direction of the minister under section 14
is guilty of an offence.
(2) Where a person, other than a corporation, is convicted of an offence under subsection (1), he or she is liable to a fine of not more than $100,000 or to a term of imprisonment not exceeding 18 months, or to both a fine and imprisonment.
(3) Where a corporation is convicted of an offence under subsection (1), the corporation is liable to a fine of not more than $200,000.
(4) Where an offence under this section or section 17 is committed or continued on more than one day, the person who committed the offence is liable to be convicted for a separate offence for each day on which the offence is committed or continued.
Offence by a corporation
17. (1) Where a corporation has been convicted of an offence under section 16, a director or officer of the corporation who directed, authorized, permitted or acquiesced in the offence is guilty of an offence and liable on summary conviction to the penalties provided for the offence whether or not the corporation has been prosecuted or convicted.
(2) In a prosecution for an offence under subsection (1), it is sufficient proof of the offence to establish that it was committed by an employee, officer, director or agent of the defendant.
(3) Subsection (2) applies whether or not the employee, officer, director or agent is identified or has been prosecuted for the offence, but that subsection does not apply where the defendant establishes that
(a) the offence was committed without the defendant's knowledge or consent; or
(b) the defendant exercised due diligence to prevent commission of the offence.
18. A prosecution under this Act or the regulations shall be started within 2 years from the date the offence is alleged to have been committed.
Fees and forms
19. The minister may set fees and establish forms for the purpose of this Act.
Fees to recover costs
20. (1) The minister may charge a rail service company a fee to recover the costs incurred in respect of the rail service company by the minister under an administrative agreement.
(2) The minister may charge a rail service company a fee to recover costs incurred by the minister in addition to the costs referred to in subsection (1) in respect of the operation and regulation of a rail service.
(3) A rail service company charged a fee under subsection (1) or (2) shall pay the fee within the time period prescribed by the minister.
SNL1993 cR-1.1 Rep.
21. The Rail Service Act is repealed.
22. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.
ŠEarl G. Tucker, Queen's Printer