Canada Marine Act (S.C. 1998, c. 10)

Short Title

Marginal note:Short title

1 This Act may be cited as the Canada Marine Act.

Interpretation

Marginal note:Definitions

• 2 (1) The definitions in this subsection apply in this Act.

  Agency

  Agency means the Canadian Transportation Agency continued by subsection 7(1) of the Canada Transportation Act. (Office)

  federal immovable

  federal immovable has the same meaning as in section 2 of the Federal Real Property and Federal Immovables Act; (immeuble fédéral)

  federal real property

  federal real property has the same meaning as in section 2 of the Federal Real Property and Federal Immovables Act; (bien réel fédéral)

  fees

  fees includes harbour dues, berthage and wharfage, as well as duties, tolls, rates and other charges, but does not include payments made under a lease or licence agreement. (droit)

  goods

  goods includes personal property and movables, other than ships. (marchandises)

  Minister

  Minister means the Minister of Transport. (ministre)

  owner

  owner includes

  • (a) in the case of a ship, the agent, charterer by demise or master of the ship; and

  • (b) in the case of goods, the agent, sender, consignee or bailee of the goods, as well as the carrier of the goods to, on, over or from any real property or immovables to which this Act applies. (propriétaire)

  person

  person includes a partnership, an association and a body corporate. (personne)

  port authority

  port authority means a port authority incorporated or continued under this Act. (administration portuaire)

  port facility

  port facility means a wharf, pier, breakwater, terminal, warehouse or other building or work that is located in, on or adjacent to navigable waters that is used in connection with navigation or shipping, land incidental to its use and any land adjacent to navigable waters that is used in connection with navigation or shipping. (installation portuaire)

  public port

  public port means a port designated as a public port under section 65. (port public)

  public port facility

  public port facility means a port facility designated as a public port facility under section 65. (installations portuaires publiques)

  Seaway

  Seaway means the deep waterway between the port of Montreal and the Great Lakes that is constructed and maintained pursuant to the Agreement between Canada and the United States providing for the development of navigation and power in the Great Lakes-St. Lawrence Basin, dated March 19, 1941, including the locks, canals and facilities between the port of Montreal and Lake Erie and generally known as the St. Lawrence Seaway. (voie maritime)

  ship

  ship means every description of vessel, boat or craft designed, used or capable of being used solely or partly for marine navigation, whether self-propelled or not and without regard to the method of propulsion, and includes a sea-plane and a raft or boom of logs or lumber. (navire)

• Marginal note:Same meaning

  (2) Unless a contrary intention appears, words and expressions used in this Act have the same meaning as in the Canada Business Corporations Act.

Aboriginal Rights

Marginal note:Aboriginal rights

3 For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the application of section 35 of the Constitution Act, 1982 to existing aboriginal or treaty rights of the aboriginal peoples of Canada.

Purpose

Marginal note:Purpose of the Act

4 In recognition of the significance of marine transportation to Canada and its contribution to the Canadian economy, the purpose of this Act is to

• (a) implement marine policies that provide Canada with the marine infrastructure that it needs and that offer effective support for the achievement of national, regional and local social and economic objectives and will promote and safeguard Canada’s competitiveness and trade objectives;

• (a.1) promote the success of ports for the purpose of contributing to the competitiveness, growth and prosperity of the Canadian economy;

• (b) base the marine infrastructure and services on international practices and approaches that are consistent with those of Canada’s major trading partners in order to foster harmonization of standards among jurisdictions;

• (c) ensure that marine transportation services are organized to satisfy the needs of users and are available at a reasonable cost to the users;

• (d) provide for a high level of safety and environmental protection;

• (e) provide a high degree of autonomy for local or regional management of components of the system of services and facilities and be responsive to local needs and priorities;

• (f) manage the marine infrastructure and services in a commercial manner that encourages, and takes into account, input from users and the community in which a port or harbour is located;

• (g) provide for the disposition, by transfer or otherwise, of certain ports and port facilities; and

• (h) promote coordination and integration of marine activities with surface and air transportation systems.

PART 1Canada Port Authorities

Interpretation

Marginal note:Definitions

5 The definitions in this section apply in this Part.

airport

airport means an airport situated in a port. (aéroport)

letters patent

letters patent means letters patent as amended by supplementary letters patent, if any. (lettres patentes)

port

port means the navigable waters under the jurisdiction of a port authority and the real property and immovables that the port authority manages, holds or occupies as set out in the letters patent. (port)

user

user, in respect of a port, means a person that makes commercial use of, or provides services at, the port. (utilisateur)

Application

Marginal note:Application of Part

• 6 (1) This Part applies to every port authority set out in the schedule and to every port authority for which letters patent of incorporation are issued or that has been continued under this Part and that has not been dissolved.

• Marginal note:Amendment of schedule

  (2) The Minister may, by regulation, amend the schedule.

Agent of Her Majesty

Marginal note:Agent of Her Majesty

• 7 (1) Subject to subsection (3), a port authority is an agent of Her Majesty in right of Canada only for the purposes of engaging in the port activities referred to in paragraph 28(2)(a).

• Marginal note:Not an agent of Her Majesty

  (2) A wholly-owned subsidiary of a port authority is not an agent of Her Majesty in right of Canada unless, subject to subsection (3),

  • (a) it was an agent of Her Majesty in right of Canada on June 10, 1996; and

  • (b) it is an agent of Her Majesty in right of Canada under an enactment other than this Act.

• Marginal note:Borrowing restriction

  (3) A port authority or a wholly-owned subsidiary of a port authority may not borrow money as an agent of Her Majesty in right of Canada.

Incorporation

Marginal note:Letters patent

• 8 (1) The Minister may issue letters patent — that take effect on the date stated in them — incorporating a port authority without share capital for the purpose of operating a particular port in Canada if the Minister is satisfied that the port

  • (a) is, and is likely to remain, financially self-sufficient;

  • (b) is of strategic significance to Canada’s trade;

  • (c) is linked to a major rail line or a major highway infrastructure; and

  • (d) has diversified traffic.

• Marginal note:Contents of letters patent

  (2) The letters patent shall set out the following:

  • (a) the corporate name of the port authority;

  • (b) the place where the registered office of the port authority is located;

  • (c) the navigable waters that are within the port authority’s jurisdiction;

  • (d) the federal real property and federal immovables under the management of the port authority;

  • (e) the real property and immovables, other than the federal real property and federal immovables, held or occupied by the port authority;

  • (f) the number of directors, between seven and eleven, to be appointed under section 14, to be chosen as follows:

    • (i) one individual nominated by the Minister,

    • (ii) one individual appointed by the municipalities mentioned in the letters patent,

    • (iii) one individual appointed by the province in which the port is situated, and, in the case of the port wholly or partially located in Vancouver, another individual appointed by the Provinces of Alberta, Saskatchewan and Manitoba acting together, and

    • (iv) the remaining individuals nominated by the Minister in consultation with the users selected by the Minister or the classes of users mentioned in the letters patent;

  • (g) a code of conduct governing the conduct of the directors and officers of the port authority;

  • (h) the charge on the gross revenues of the port authority, or the formula for calculating it, that the port authority shall pay each year to the Minister on the day fixed by the Minister to maintain its letters patent in good standing;

  • (i) the extent to which the port authority and a wholly-owned subsidiary of the port authority may undertake port activities referred to in paragraph 28(2)(a) and other activities referred to in paragraph 28(2)(b);

  • (j) the maximum term of a lease or licence of federal real property or federal immovables under the management of the port authority;

  • (k) the limits on the authority of the port authority to contract as agent for Her Majesty;

  • (l) the limits on the power of the port authority to borrow money on the credit of the port authority for port purposes or a code governing that power, as the case may be; and

  • (m) any other provision that the Minister considers appropriate to include in the letters patent and that is not inconsistent with this Act.

• Marginal note:Status of letters patent

  (3) Letters patent are not regulations within the meaning of the Statutory Instruments Act, but shall be published in the Canada Gazette and are valid with respect to third parties as of the date of publication.

• Marginal note:When Ministerial approval required

  (4) Any provisions of letters patent relating to the extent to which a port authority may undertake activities referred to in paragraph 28(2)(b) shall be approved by the President of the Treasury Board and the Minister of Finance before the letters patent are issued.

• Marginal note:When Governor in Council approval required

  (5) Any provisions of letters patent relating to limits on a port authority’s power to borrow money on its credit for port purposes shall be approved by the Governor in Council, on the recommendation of the Minister and the Minister of Finance, before the letters patent are issued.

Marginal note:Supplementary letters patent

• 9 (1) The Minister may, either on the Minister’s own initiative and after giving notice of the proposed changes to the board of directors, or when the board of directors has, by resolution, requested it, issue supplementary letters patent amending the letters patent of a port authority if the Minister is satisfied that the amendment is consistent with this Act, and the supplementary letters patent take effect on the date stated in them.

• Marginal note:Notice

  (2) Notice must be given in writing and set out a time limit within which the board of directors may comment to the Minister regarding the proposed changes.

Continuance of Harbour Commissions

Marginal note:Continuance of harbour commissions

• 10 (1) If the Minister is satisfied that the criteria set out in subsection 8(1) are met, the Minister may issue in respect of one or more harbour commissions established under the Harbour Commissions Act, letters patent continuing the harbour commission as a port authority that set out the information required by subsection 8(2).

• Marginal note:Effect of letters patent

  (2) On the day on which the letters patent are issued, the harbour commission becomes a port authority and the Harbour Commissions Act ceases to apply.

• Marginal note:Rights and obligations preserved — harbour commissions

  (3) The rights and obligations of a port authority that was one or more harbour commissions immediately before letters patent were issued are as follows:

  • (a) the corporate name of the port authority is substituted for that of the harbour commission in every contract, collective agreement, lease, licence, permit or other document entered into or granted by the harbour commission with regard to the port;

  • (b) the management of the federal real property and federal immovables set out in the letters patent, and any rights related to them, is conferred on the port authority;

  • (c) the real property and immovables, other than federal real property and federal immovables, that the harbour commission occupied or the title to which it held, whether or not in its own name, and that are set out in the letters patent, and any rights related to them, become the interest, property and rights of the port authority, as the case may be;

  • (d) the personal property or movable, and any rights related to it, that the harbour commission manages, or the title to which it holds, on behalf of Her Majesty in right of Canada, whether or not in its own name, become the property and rights of the port authority;

  • (e) an existing cause of action, proceeding or claim by or against the harbour commission or a liability or other obligation of the harbour commission is unaffected except that any judgment or order is to be satisfied first by the port authority;

  • (f) a civil, criminal or administrative action or proceeding pending by or against the harbour commission may be continued only by or against the port authority; and

  • (g) subject to paragraph (e), a conviction against, or a ruling, order or judgment in favour of or against, the harbour commission may be enforced only by or against the port authority.

Marginal note:Consequences for commissioners

11 The commissioners of a harbour commission continued under subsection 10(1) cease to hold office on the day referred to in section 18 and have no right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from any servant or agent of Her Majesty for ceasing to hold office by virtue of this Part.

Initial Port Authorities

Marginal note:Continued or deemed incorporated

• 12 (1) A port authority set out in an item of Part 1 of the schedule is automatically continued or deemed to be incorporated under section 8 on the day on which that item comes into force and the Minister shall issue to it letters patent that set out the information required by subsection 8(2).

• Marginal note:Rights and obligations preserved — harbour commissions

  (2) The rights and obligations of a port authority referred to in subsection (1) that was one or more harbour commissions immediately before the coming into force of this subsection are governed by subsection 10(3).

• Marginal note:Rights and obligations preserved — local port corporations

  (3) The rights and obligations of a port authority referred to in subsection (1) that was, immediately before the coming into force of this subsection, a local port corporation established under the Canada Ports Corporation Act are as follows:

  • (a) the corporate name of the port authority is substituted for that of the local port corporation in every contract, collective agreement, lease, licence, permit or other document entered into or granted by the local port corporation, the Canada Ports Corporation or any of their predecessors in respect of the port;

  • (b) the real property and immovables, and any rights related to them, that the local port corporation administers, or the title to which it holds, on behalf of Her Majesty in right of Canada, whether or not in its own name, remain the property and rights of Her Majesty;

  • (c) the management of the federal real property and federal immovables set out in the letters patent, and any rights related to them, is conferred on the port authority;

  • (d) the personal property or movable, and any rights related to it, that the local port corporation administers, or the title to which it holds, on behalf of Her Majesty in right of Canada, whether or not in its own name, become the property and rights of the port authority;

  • (e) an existing cause of action, proceeding or claim by or against the local port corporation or liability or other obligation of the local port corporation is unaffected except that any judgment or order is to be satisfied first by the port authority;

  • (f) a civil, criminal or administrative action or proceeding pending by or against the local port corporation may be continued only by or against the port authority; and

  • (g) subject to paragraph (e), a conviction against, or a ruling, order or judgment in favour of or against, the local port corporation may be enforced only by or against the port authority.

• Marginal note:Rights and obligations preserved — non-corporate ports

  (4) The rights and obligations of a port authority referred to in subsection (1) that was, immediately before the coming into force of this subsection, a non-corporate port within the meaning of the Canada Ports Corporation Act are as follows:

  • (a) the corporate name of the port authority is substituted for that of the Canada Ports Corporation or any of its predecessors in every contract, collective agreement, lease, licence, permit or other document entered into or granted by the Canada Ports Corporation or any of its predecessors in respect of the port;

  • (b) the real property and immovables, and any rights related to them, that form part of the port and that the Canada Ports Corporation administers, or the title to which it holds, on behalf of Her Majesty in right of Canada, whether or not in its own name, remain the property and rights of Her Majesty;

  • (c) the management of the federal real property and federal immovables set out in the letters patent, and any rights related to them, is conferred on the port authority;

  • (d) the personal property or movable, and any rights related to it, that relate to the port and that the Canada Ports Corporation administers, or the title to which it holds, on behalf of Her Majesty in right of Canada, whether or not in its own name, become the property and rights of the port authority;

  • (e) an existing cause of action, proceeding or claim by or against the Canada Ports Corporation in respect of the port or a liability or other obligation of that Corporation in respect of the port is unaffected except that any judgment or order is to be satisfied first by the port authority;

  • (f) a civil, criminal or administrative action or proceeding pending by or against the Canada Ports Corporation in respect of the port may be continued only by or against the port authority; and

  • (g) subject to paragraph (e), a conviction against, or a ruling, order or judgment in favour of or against, the Canada Ports Corporation in respect of the port may be enforced only by or against the port authority.

• Marginal note:Fixing limits of port

  (5) For the purposes of subsection (4), the Minister may fix the limits of a non-corporate port that is to be managed by a port authority and settle any question that arises in respect of the property, rights or obligations of the port authority.

Marginal note:Consequences for former directors and commissioners

• 13 (1) The directors or commissioners of the bodies that become port authorities under section 12 cease to hold office on the day referred to in section 18 and have no right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from any servant or agent of Her Majesty for ceasing to hold office by virtue of this Part.

• Marginal note:Consequences for officers

  (2) Neither the port authority nor Her Majesty in right of Canada is bound by any severance agreement entered into between a predecessor of the port authority and any of its officers after December 1, 1995.

Amalgamation of Port Authorities

Marginal note:Directors

• 13.1 (1) The Governor in Council may remove any director of an amalgamating port authority during the period that begins on the day on which the Governor in Council requires the amalgamation and ends on the day before the day on which the amalgamation takes effect.

• Marginal note:Subsection 14(2.3)

  (2) Subsection 14(2.3) does not apply to a director of an amalgamating port authority who holds office on the day on which the Governor in Council requires the amalgamation.

• Marginal note:Fees continued

  (3) A fee that is in force in respect of a port on the day on which an amalgamation takes effect continues in force for a period that ends on the earlier of the expiry of six months and the day on which it is replaced by a fee fixed under subsection 49(1).

Directors

Marginal note:Appointment of directors

• 14 (1) The directors of a port authority shall be appointed as follows:

  • (a) the Governor in Council appoints one individual nominated by the Minister;

  • (b) the municipalities mentioned in the letters patent appoint one individual;

  • (c) the province or provinces mentioned in the letters patent appoint one or two individuals as mentioned in the letters patent; and

  • (d) the Governor in Council appoints the remaining individuals nominated by the Minister in consultation with users selected by the Minister or the classes of users mentioned in the letters patent.

• Marginal note:Directors appointed by provinces and municipalities

  (1.1) The Governor in Council may appoint a director under paragraph (1)(b) or (c) who has been nominated by the Minister if the position has been vacant for more than one year.

• Marginal note:Tenure of office

  (2) Directors are appointed to hold office for any term of not more than three years that will ensure as far as possible the expiry in any one year of the terms of office of not more than one half of the directors, the terms being renewable twice only.

• Marginal note:Maximum term of office

  (2.1) A director shall serve no more than nine consecutive years on the board.

• Marginal note:Effective day of appointment

  (2.2) A director’s appointment made by a municipality or province takes effect on the day on which notice of the appointment is received by the port authority.

• Marginal note:Extension of term

  (2.3) Subject to subsection (2.1), if a successor has not been appointed at the expiry of a director’s term, the director continues to hold office until their term is renewed or their successor is appointed.

• Marginal note:Directors appointed by municipalities and provinces

  (2.4) Subject to subsection (2.1) and despite subsection (2), the term of office of a director appointed under subsection (1.1) to fill a vacant position under paragraph (1)(b) or (c) expires on the day on which a director is appointed under that paragraph.

• Marginal note:Not eligible

  (3) No person is eligible to be appointed as a director within twelve months after the expiration of their term or renewed term.

• Marginal note:Part-time

  (4) The directors are appointed to serve part-time.

• Marginal note:Remuneration

  (5) The board of directors shall fix the remuneration of the directors, the chairperson and the chief executive officer.

• Marginal note:Quorum

  (6) Subject to the letters patent, a majority of the directors in office constitutes a quorum at any meeting of directors and a quorum of directors may exercise all the powers of the directors.

Marginal note:Experience

• 15 (1) The directors of a port authority appointed under any of paragraphs 14(1)(a) to (c) shall have generally acknowledged and accepted stature within the transportation industry or the business community.

• Marginal note:Knowledge or experience

  (2) The directors of a port authority appointed under paragraph 14(1)(d) shall have generally acknowledged and accepted stature within the transportation industry or the business community and relevant knowledge and extensive experience related to the management of a business, to the operation of a port or to maritime trade.

Marginal note:Persons excluded

16 The following individuals may not be directors of a port authority:

• (a) an individual who is a mayor, councillor, officer or employee of a municipality mentioned in the letters patent;

• (b) an individual who is a member of the legislature of a province, or an officer or employee of the public service or of a Crown corporation of a province, mentioned in the letters patent;

• (c) a Senator or a member of the House of Commons;

• (c.1) an officer or employee of the federal public administration, a federal Crown corporation or a port authority;

• (d) an individual who is not a resident Canadian, as defined in subsection 2(1) of the Canada Business Corporations Act;

• (e) an individual who is a director, officer or employee of a person who is a user of the port;

• (f) an individual who is under eighteen years of age;

• (g) an individual who has been declared mentally incompetent by a court in Canada or elsewhere; or

• (h) an undischarged bankrupt.

Marginal note:Election of chairperson

17 The board of directors shall elect a chairperson from among their number for a term not exceeding two years, the term being renewable.

Marginal note:Term of office

18 Subject to subsection 19(1), where a port authority is continued under section 10 or 12, the directors or commissioners of the former local port corporation or harbour commission, respectively, continue to hold office as provisional directors of the port authority until the earlier of the day on which they are replaced or removed and ninety days after the date of the continuance.

Marginal note:Ceasing to hold office

• 19 (1) A director of a port authority ceases to hold office when the director

  • (a) dies or resigns;

  • (b) is removed for cause by the authority that made the appointment, namely, the Governor in Council, the municipalities or the province or provinces, as the case may be; or

  • (c) is no longer qualified under section 16.

• Marginal note:Effective date of resignation

  (2) The resignation of a director becomes effective on the day on which a written resignation is received by the port authority or on the day specified in the resignation, whichever is later.

Marginal note:Power to manage

20 The board of directors is responsible for the management of the activities of a port authority.

Marginal note:Appointment of officers

• 21 (1) The board of directors of a port authority shall appoint a chief executive officer and may appoint other officers that they consider appropriate.

• Marginal note:Chief executive officer

  (2) The chief executive officer is not a member of the board of directors.

• Marginal note:Personnel

  (3) A port authority may appoint the personnel that it considers necessary for the operation of the port.

Marginal note:Delegation

21.1 Subject to the letters patent, the board of directors may delegate the powers to manage the activities of the port authority to a committee of directors or to the officers of the port authority.

Marginal note:Duty of care of directors and officers

• 22 (1) Every director and officer of a port authority shall, in exercising powers and discharging duties,

  • (a) act honestly and in good faith with a view to the best interests of the port authority; and

  • (b) exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.

• Marginal note:Duty to comply

  (2) Every director and officer of a port authority shall comply with this Part, the regulations made under subsection 27(1) and the letters patent and by-laws of the port authority.

• Marginal note:No exculpation

  (3) No provision in a contract or resolution relieves a director or officer from the duty to act in accordance with this Part, the regulations made under subsection 27(1), the letters patent or the by-laws or relieves them from liability for a breach of any of them.

Legal Regime Applicable to Port Authorities

Marginal note:Liability arising when acting as agent of Crown

• 23 (1) If a port authority or a wholly-owned subsidiary of a port authority is acting as agent of Her Majesty in right of Canada, the port authority or subsidiary must fulfil or satisfy an obligation or liability in respect of the port authority or subsidiary, as the case may be, arising from its exercise of, or its failure to exercise, a power or right or arising by operation of law. Her Majesty is not responsible for fulfilment or satisfaction of the obligation or liability, except that if a judgment or decision is rendered by a court of competent jurisdiction in respect of the obligation or liability, Her Majesty is responsible for satisfying the judgment or decision to the extent that it remains unsatisfied by the port authority or subsidiary at least thirty days after the judgment or decision becomes final.

• Marginal note:Liability arising when not acting as agent of Crown

  (2) If a port authority or a wholly-owned subsidiary of a port authority is not acting as agent of Her Majesty in right of Canada, an obligation or liability in respect of the port authority or subsidiary, as the case may be, arising from its exercise of, or its failure to exercise, a power or right or arising by operation of law is an obligation or liability of the port authority or subsidiary, as the case may be, and not an obligation or liability of Her Majesty.

• Marginal note:Insurance required

  (3) A port authority and a wholly-owned subsidiary of a port authority shall fully maintain in good standing at all times the insurance coverage required by any regulations made under paragraph 27(1)(e).

Marginal note:Financial Administration Act

24 The Financial Administration Act, other than subsection 9(3) and sections 155, 155.1 and 156, does not apply to a port authority or a wholly-owned subsidiary of a port authority.

Marginal note:No appropriation

25 Even if the port authority or subsidiary is an agent of Her Majesty in right of Canada as provided under section 7, no payment to a port authority or a wholly-owned subsidiary of a port authority may be made under an appropriation by Parliament to enable the port authority or subsidiary to discharge an obligation or liability unless

• (a) the payment

  • (i) is made under the Emergencies Act or any other Act in respect of emergencies,

  • (i.1) is a loan made by the Canada Infrastructure Bank under the Canada Infrastructure Bank Act,

  • (ii) is a contribution in respect of the capital costs of an infrastructure project,

  • (iii) is a contribution in respect of environmental sustainability, or

  • (iv) is a contribution in respect of security, or

• (b) the authority for the funding of Her Majesty’s obligations is an agreement that was in existence before March 1, 1999.

Marginal note:Contribution

25.1 The Minister may, with the approval of the Governor in Council given on the recommendation of the Treasury Board and on any terms and conditions specified by the Governor in Council on the recommendation of the Treasury Board, make a contribution under subparagraph 25(a)(iv).

Marginal note:Payments to Canada Place Corporation

25.2 Despite section 25, the Minister of Canadian Heritage may make payments to Canada Place Corporation for Canada Day celebrations and for the celebrations marking the 150th anniversary of Confederation.

Marginal note:No guarantee

26 No guarantee may be given under the authority of Parliament by or on behalf of Her Majesty for the discharge of an obligation or liability of a port authority or a wholly-owned subsidiary of a port authority. This section applies even if the port authority or subsidiary is an agent of Her Majesty in right of Canada as provided under section 7.

Marginal note:Canada Infrastructure Bank

26.1 Section 26 does not apply with respect to a loan guarantee provided by the Canada Infrastructure Bank on behalf of the government of Canada under paragraph 18(h) of the Canada Infrastructure Bank Act.

Marginal note:Regulations

• 27 (1) For the purposes of this Part, the Governor in Council may make regulations for the corporate management and control of port authorities or wholly-owned subsidiaries of port authorities, including regulations

  • (a) adapting any provision of the Canada Business Corporations Act and any regulations made under that Act, including provisions imposing punishment, for the purpose of applying those provisions as adapted to port authorities;

  • (b) prescribing, for the purposes of section 32, categories of investments in which a port authority may invest;

  • (c) respecting the preparation, form and content of the documents referred to in paragraphs 37(2)(a) to (d) and the information referred to in subsection 37(3);

  • (d) prescribing the remuneration threshold for the purposes of paragraph 37(3)(c) and the method of determining that threshold;

  • (e) respecting the insurance coverage that a port authority and a wholly-owned subsidiary of a port authority must maintain;

  • (f) respecting the imposition of obligations on a port authority or a wholly-owned subsidiary of a port authority, as an agent of Her Majesty in right of Canada, including any requirements for a port authority or a wholly-owned subsidiary of a port authority to indemnify Her Majesty;

  • (g) respecting the information and documents to be provided by a port authority to the Minister at the Minister’s request; and

  • (h) respecting the amalgamation of port authorities.

• Marginal note:Application

  (2) A regulation made under subsection (1) may apply to only one port authority or wholly-owned subsidiary of a port authority.

• Marginal note:Binding on Her Majesty

  (3) A regulation made under subsection (1) may be made binding on Her Majesty in right of Canada or a province.

Capacity and Powers

Marginal note:Capacity and powers

• 28 (1) A port authority is incorporated for the purpose of operating the port in respect of which its letters patent are issued and, for that purpose and for the purposes of this Act, has the powers of a natural person.

• Marginal note:Activities

  (2) The power of a port authority to operate a port is limited to the power to engage in

  • (a) port activities related to shipping, navigation, transportation of passengers and goods, handling of goods and storage of goods, to the extent that those activities are specified in the letters patent; and

  • (b) other activities that are deemed in the letters patent to be necessary to support port operations.

• Marginal note:Carrying on activities

  (3) The activities that a port authority may engage in under paragraph (2)(b) may be carried on by the port authority directly or through a wholly-owned subsidiary of the port authority. The port authority and the subsidiary are not agents of Her Majesty in right of Canada for the purpose of engaging in those activities.

• Marginal note:Restrictions

  (4) A port authority shall not carry on any activity or exercise any power that it is restricted by its letters patent from carrying on or exercising, nor shall it carry on any activity or exercise any power in a manner contrary to its letters patent or this Act.

• Marginal note:Contracts

  (5) A port authority or wholly-owned subsidiary of a port authority that enters into a contract other than as agent of Her Majesty in right of Canada shall do so in its own name. It shall expressly state in the contract that it is entering into the contract on its own behalf and not as agent of Her Majesty in right of Canada. For greater certainty, the contracts to which this subsection applies include a contract for the borrowing of money.

• Marginal note:Compliance with code

  (5.1) If a port authority that is subject to a code governing its power to borrow enters into a contract, or executes any other document, for the borrowing of money, the document shall include an express statement that the borrowing complies with the code.

• Marginal note:Duty of directors

  (6) The directors of a port authority shall take all necessary measures to ensure

  • (a) that the port authority and any wholly-owned subsidiary of the port authority comply with subsections (5) and, if applicable, (5.1); and

  • (b) that any subcontract arising directly or indirectly from a contract to which subsection (5) applies expressly states that the port authority or subsidiary, as the case may be, enters into the contract on its own behalf and not as agent of Her Majesty in right of Canada.

• Marginal note:Borrowing limitations may be imposed

  (7) If a port authority or a wholly-owned subsidiary of a port authority fails to comply with subsection (5) or (5.1), or the directors of a port authority fail to comply with subsection (6) or section 30.1, the Minister of Finance, on the recommendation of the Minister of Transport, may impose any limitations that the Minister of Finance considers to be in the public interest on the power of the port authority or subsidiary to borrow money, including limitations on the time and terms and conditions of any borrowing.

• Marginal note:No effect on status

  (8) For greater certainty, the imposition under subsection (7) of limitations on the power of a port authority or subsidiary to borrow money or the imposition of other limitations or controls by the Minister, any other member of the Queen’s Privy Council for Canada or the Governor in Council, through the issuance of letters patent, the granting of any approval or any other means, does not expand the extent, if any, to which the port authority or subsidiary is an agent of Her Majesty in right of Canada beyond that described in section 7.

• Marginal note:Obligation when contracting as agent of the Crown

  (9) A port authority, or a wholly-owned subsidiary of a port authority, that enters into a contract as an agent of Her Majesty in right of Canada is bound by the contract and is responsible to Her Majesty for the performance of obligations to other parties under the contract.

• Marginal note:Existing uses

  (10) Except for a use authorized under this Act, a port authority may continue to use any real property or immovable that it manages, holds or occupies for any purpose for which the real property or immovable was used on June 1, 1996 in the case of a port authority referred to in section 12, or the date of issuance of its letters patent in any other case, but, if the port authority ceases to use it for that purpose at any time, the port authority may not reinstitute the use.

• Marginal note:Restrictions — subsidiaries

  (11) The directors of a port authority shall take all necessary measures to ensure that its wholly-owned subsidiaries

  • (a) have and exercise only the powers authorized in the letters patent of the port authority;

  • (b) carry on only the activities authorized in the letters patent; and

  • (c) do not exercise any power or carry on any activity in a manner contrary to the letters patent or this Act.

• Marginal note:Provisions applicable to subsidiary

  (12) The Governor in Council may declare that any provision of this Part that applies only to port authorities applies to a wholly-owned subsidiary of a port authority. In that case, the provision applies to the subsidiary as if it were a port authority, with such modifications as the circumstances require.

• Marginal note:Existing activities

  (13) A wholly-owned subsidiary of a port authority may continue to carry on any activity or exercise any power that it carried on or exercised on December 1, 1995 but, if the subsidiary ceases to carry on the activity or exercise the power at any time, it may not recommence it unless the activity or power is authorized in the letters patent.

• Marginal note:Restriction on corporate activities

  (14) Unless the letters patent of a port authority provide otherwise, the port authority or a wholly-owned subsidiary of the port authority shall not

  • (a) cause the incorporation of a corporation whose shares on incorporation would be held by, on behalf of or in trust for the port authority or subsidiary;

  • (b) acquire shares of a corporation to be held on behalf of or in trust for the port authority or subsidiary;

  • (c) acquire all or substantially all of the assets of another corporation;

  • (d) sell or otherwise dispose of shares of a wholly-owned subsidiary of the port authority; or

  • (e) cause the dissolution or amalgamation of a wholly-owned subsidiary of the port authority.

Marginal note:Powers of port authority re railways

• 29 (1) Subject to its letters patent, to any other Act and to any regulations made under any other Act, a port authority may

  • (a) construct, purchase, lease, operate and maintain railways on lands it manages, holds or occupies;

  • (b) enter into agreements with any person for the maintenance of the railways referred to in paragraph (a) and for their operation, in a manner that will provide all railway companies whose lines reach the port with the same facilities for traffic as those enjoyed by that person; and

  • (c) enter into arrangements with any person for facilitating traffic to, from or within the limits of the port.

• Marginal note:Application of other Acts

  (2) A railway referred to in paragraph (1)(a) is not subject to Part III of the Canada Transportation Act but the Governor in Council may make regulations applying any provision of the Railway Safety Act and any regulations made under that Act to such a railway.

• Marginal note:Airport operation

  (3) Subject to its letters patent, to any other Act, to any regulations made under any other Act and to any agreement with the Government of Canada that provides otherwise, a port authority that operates an airport shall do so at its own expense.

Marginal note:Power to make by-laws

30 Unless the letters patent provide otherwise, the directors of a port authority may, by resolution, make, amend or repeal by-laws that regulate the affairs of the port authority or the duties of its officers and employees.

Marginal note:Borrowing policy

• 30.1 (1) The directors of a port authority that is subject to a code governing its power to borrow shall certify to the Minister that the borrowing policy is in compliance with the code.

• Marginal note:Changes to borrowing policy

  (2) If there are any changes in respect of the borrowing policy, the directors of the port authority shall certify to the Minister that the policy remains in compliance with the code.

• Marginal note:Copy of policy

  (3) The directors of the port authority shall provide a copy of the borrowing policy to the Minister if the Minister requests one.

Marginal note:Borrowing powers

• 31 (1) Subject to the letters patent, a port authority may borrow money on the credit of the port authority for port purposes.

• Marginal note:Delegation of borrowing powers

  (2) Unless the letters patent or by-laws of a port authority provide otherwise, the board of directors may, by resolution, delegate the powers referred to in subsection (1) to a committee established by the directors.

• Marginal note:No security interest in property

  (3) Subject to subsection (4), a port authority may not mortgage, hypothecate or otherwise create a security interest in any federal real property or federal immovable that it manages in any way other than to create a security interest in the revenues of that property.

• Marginal note:Pledge of fixtures

  (4) A port authority may, if authorized in the letters patent, create a security interest in fixtures on federal real property and federal immovables to the same extent as Her Majesty could create such an interest and may, instead of Her Majesty, execute and deliver the documents required for that purpose.

• Marginal note:Definition of security interest

  (5) For the purposes of subsections (3) and (4), security interest means an interest in or charge on property or fixtures mentioned in those subsections to secure the discharge of an obligation or liability of the port authority.

• Marginal note:Application of provincial law

  (6) A grant under subsection (4) may be effected by any instrument by which an interest in real property or a right in an immovable may be granted by a private person under the laws in force in the province in which the federal real property, federal immovable or fixtures are situated.

Marginal note:Powers to invest

32 A port authority may invest any moneys in its reserves or any moneys that it does not immediately require in

• (a) debentures, bonds, bankers’ acceptances or other debt obligations of or guaranteed by Her Majesty in right of Canada or any province or municipality in Canada or any member of the Canadian Payments Association; or

• (b) investments of a category prescribed by regulation by the Governor in Council for the purposes of this section.

Marginal note:Deemed knowledge of letters patent

33 A person who deals with a port authority, acquires rights from a port authority or directly or indirectly acquires rights relating to a port authority is deemed to know the contents of the letters patent of the port authority.

Annual Meeting

Marginal note:Annual meeting

34 The directors of a port authority shall call an annual meeting not later than eighteen months after the port authority comes into existence and subsequently not later than fifteen months after holding the last preceding annual meeting.

Marginal note:Meeting open to public

• 35 (1) The annual meeting of a port authority shall be open to the public and held in any of the municipalities where the port is situated, in premises large enough to accommodate the anticipated attendance.

• Marginal note:Notice of meeting

  (2) A port authority shall, at least thirty days before the annual meeting, have a notice published in a major newspaper published or distributed in the municipalities where the port is situated setting out the time and location of the meeting and specifying that the port authority’s financial statements are available to the public at its registered office.

• Marginal note:Availability to public

  (3) At the annual meeting, the board of directors shall ensure

  • (a) that there are available a sufficient number of copies of the most recent audited annual financial statements of the port authority for the persons present at the meeting; and

  • (b) that the chief executive officer and the directors are available to answer questions about the operations of the port authority posed by the persons present at the meeting.

Marginal note:Annual financial statements

36 The board of directors of a port authority shall present at every annual meeting

• (a) comparative financial statements that relate separately to

  • (i) the period that ended not more than six months before the annual meeting and that began on the date the port authority came into existence or, if the port authority has completed a fiscal year, immediately after the end of the last completed fiscal year, and

  • (ii) the immediately preceding fiscal year;

• (b) the report of the auditor of the port authority; and

• (c) any further information respecting the financial position of the port authority and its wholly-owned subsidiaries and the results of their operations required by this Act, any regulations made under this Act, the letters patent or the by-laws.

Financial Management

Marginal note:Public to get financial statements

• 37 (1) A port authority shall make available for inspection by the public, at its registered office during normal business hours at least thirty days before the annual meeting, its audited annual financial statements and those of its wholly-owned subsidiaries for the preceding fiscal year.

• Marginal note:Contents

  (2) The financial statements shall be prepared in accordance with generally accepted accounting principles and consist of at least the following:

  • (a) a balance sheet;

  • (b) a statement of retained earnings;

  • (c) a statement of income and expenses; and

  • (d) a statement of changes in financial position.

• Marginal note:Remuneration

  (3) The annual financial statements shall set out the total remuneration paid in money or in kind to each of the following persons in that year by the port authority or its wholly-owned subsidiary, including any fee, allowance or other benefit:

  • (a) the directors;

  • (b) the chief executive officer; and

  • (c) the officers and employees whose remuneration exceeds a prescribed threshold.

• Marginal note:Statements to be given to Minister

  (4) A port authority shall submit to the Minister its audited annual financial statements, and those of its wholly-owned subsidiaries, at least thirty days before the port authority’s annual meeting.

• Marginal note:Other information to be given to Minister

  (5) A port authority shall provide the Minister with such accounts, budgets, returns, statements, documents, records, books, reports or other information as the Minister may require, including information about any contingent liabilities of the port authority or of its wholly-owned subsidiaries.

Marginal note:Books and systems

• 38 (1) A port authority shall ensure that, in respect of itself and its wholly-owned subsidiaries,

  • (a) books of account and accounting records are kept; and

  • (b) financial and management control and information systems and management practices are maintained.

• Marginal note:Keeping of books

  (2) The books, records, systems and practices shall be kept and maintained in a manner that will provide reasonable assurance that

  • (a) the assets of the port authority are safeguarded and controlled;

  • (b) the transactions of the port authority are in accordance with this Part and the letters patent and by-laws of the port authority; and

  • (c) the financial, human and physical resources of the port authority are managed economically and efficiently and the operations of the port authority are carried out effectively.

Marginal note:Business plan

39 A port authority shall, within three months after the end of each fiscal year, submit to the Minister, in respect of itself and each of its wholly-owned subsidiaries, a five-year business plan containing any information that the Minister may require, including any material changes in respect of information provided in the previous business plan.

Marginal note:Manner of presenting information

40 The financial statements and business plan of a port authority shall be prepared in a form that clearly sets out information about each of the activities of the port authority and its wholly-owned subsidiaries, with the information about port activities referred to in paragraph 28(2)(a) set out separately from the information about other activities referred to in paragraph 28(2)(b).

Special Examinations

Marginal note:Special examinations

• 41 (1) A port authority shall have a special examination carried out to determine whether the books, records, systems and practices referred to in subsection 38(1) were, in the period under examination, maintained in a manner that provided reasonable assurance that they met the requirements of subsection 38(2).

• Marginal note:Time for examination

  (2) A special examination shall be carried out at least once every five years and at any additional times that the Minister may require.

• Marginal note:Plan

  (3) Before beginning a special examination, the examiner shall survey the systems and practices of the port authority and submit a plan for the examination, including a statement of the criteria to be applied, to the audit committee of the port authority, or if there is no audit committee, to the board of directors, and, in the case where the Minister has required the special examination to be carried out, to the Minister.

• Marginal note:Disagreements

  (4) Where the examiner and the audit committee or board of directors disagree about the plan, the Minister may make a final determination with respect to it.

• Marginal note:Reliance on internal audit

  (5) The examiner shall, to the extent the examiner considers it feasible, rely on an internal audit carried out by the port authority.

Marginal note:Report

• 42 (1) The examiner shall, on completion of the special examination, submit a report and a summary report of the findings to the Minister and to the board of directors.

• Marginal note:Contents

  (2) The examiner’s report shall include

  • (a) a statement as to whether in the examiner’s opinion, with respect to the criteria established under subsection 41(3), there is reasonable assurance that there are no significant deficiencies in the systems and practices examined; and

  • (b) a statement of the extent to which the examiner relied on internal audits.

• Marginal note:Notice of report

  (3) A port authority shall, as soon as is practicable after it receives the summary report, have notice of the summary report published in a major newspaper published or distributed in the place where the port is situated.

• Marginal note:Report available to public

  (4) A port authority shall make the summary report available for inspection by the public at its registered office during normal business hours.

Marginal note:Examiner — auditor

• 43 (1) Subject to subsection (2), a special examination shall be carried out by the auditor of a port authority.

• Marginal note:Examiner — other qualified auditor

  (2) Where, in the opinion of the Minister, a person other than the auditor of a port authority should carry out a special examination, the Minister may, after consulting with the board of directors appoint another auditor to do it and may, after again consulting with the board, remove that auditor at any time.

Property

Marginal note:Federal Real Property and Federal Immovables Act

• 44 (1) For the purposes of the Federal Real Property and Federal Immovables Act, the Minister has the administration of the federal real property and federal immovables of a port in respect of which letters patent have been issued to the port authority, other than property the administration of which is under any other member of the Queen’s Privy Council for Canada.

• Marginal note:Management

  (2) The Minister may, by letters patent or supplementary letters patent, give to a port authority the management of any federal real property or federal immovable that is administered by

  • (a) the Minister under subsection (1); or

  • (b) any other member of the Queen’s Privy Council for Canada, if the Minister has the consent of that other member.

• Marginal note:Non-application

  (3) If the Minister gives the management of any federal real property or federal immovable to a port authority, the Federal Real Property and Federal Immovables Act does not apply to that property, other than sections 3, 5, 12 to 14 and 16 to the extent that those sections are not inconsistent with this Act.

• Marginal note:Surplus Crown Assets Act

  (4) The Surplus Crown Assets Act does not apply to a port authority.

• Marginal note:Notice to Minister

  (5) If a port authority is of the opinion that any real property or immovable is no longer required for port purposes, it shall so inform the Minister.

• Marginal note:Holding of real property and immovables

  (6) A port authority may manage, occupy or hold only the real property and immovables set out in its letters patent.

Marginal note:Powers and obligations when management given

• 45 (1) When the Minister has given the management of any federal real property or federal immovable to a port authority, the port authority

  • (a) need not pay compensation for the use of that property;

  • (b) may retain and use the revenue received in respect of that property for the purpose of operating the port;

  • (c) shall undertake and defend any legal proceedings, subject to any instructions that may be provided by the Attorney General of Canada, with respect to that property; and

  • (d) shall discharge all obligations and liabilities with respect to that property.

• Marginal note:Legal proceedings

  (2) A civil, criminal or administrative action or proceeding shall be taken by or against a port authority and not by or against the Crown with respect to

  • (a) any personal property or movable owned by that port authority;

  • (b) any federal real property or federal immovable that it manages;

  • (c) any real property or immovable that it holds; and

  • (d) any act or omission relating to any property referred to in paragraphs (a) to (c).

• Marginal note:Leases and licences

  (3) A port authority may, for the purpose of operating the port, lease or license any federal real property or federal immovable that it manages, subject to the limits in the port authority’s letters patent on its authority to contract as agent for Her Majesty in right of Canada. The term of the lease or licence may not be more than the maximum term that the letters patent set out for such a lease or licence.

• Marginal note:Powers

  (3.1) The port authority may exercise the powers under subsection (3) to the same extent as Her Majesty could exercise those powers and may, instead of Her Majesty, execute and deliver the documents required for that purpose.

• Marginal note:Temporary use

  (3.2) A port authority may lease or license any federal real property or federal immovable it manages for temporary use under paragraph 28(2)(a).

• Marginal note:Application of provincial law

  (4) A lease or licence of any federal real property or federal immovable may be effected by any instrument by which, under the laws in force in the province in which that property is situated, real property or immovables may be leased or a licence may be granted by a private person.

Marginal note:Acquisition of real property and immovables

• 45.1 (1) Her Majesty in right of Canada may acquire any real property or immovable for the purpose of operating a port at the request of the port authority and the port authority may pay the price of the property in question.

• Marginal note:Removal of management

  (2) If the management of the real property or immovable acquired under subsection (1) is removed from the port authority, Her Majesty does not become liable to the port authority for any portion of the price paid by it.

Marginal note:Disposition of federal real property and federal immovables

• 46 (1) Subject to subsection 45(3), a port authority may not dispose of any federal real property or federal immovable that it manages but it may

  • (a) without the issuance of supplementary letters patent, grant a road allowance, an easement, a real servitude, a right of way or a licence for utilities, services or access; and

  • (b) to the extent authorized in the letters patent,

    • (i) exchange that property for other real property or immovables of comparable value, if supplementary letters patent that describe the other property as federal real property or federal immovables have been issued, and

    • (ii) dispose of fixtures on federal real property and federal immovables.

• Marginal note:Powers

  (1.1) The port authority may exercise the powers under paragraph (1)(a) or (b) to the same extent as Her Majesty could exercise those powers and may, instead of Her Majesty, execute and deliver the documents required for that purpose.

• Marginal note:Other real property and immovables

  (2) A port authority may dispose of any real property or immovable that it holds, other than federal real property or federal immovables, if supplementary letters patent have been issued, and, without the issuance of supplementary letters patent, it may grant a road allowance, an easement, a real servitude, a right of way or a licence for utilities, services or access.

• Marginal note:Acquisition, lease or license of real property and immovables

  (2.1) The port authority may acquire, lease as lessee or license as licensee real property or immovables other than federal real property or federal immovables, if supplementary letters patent have been issued.

• Marginal note:Acquisition of federal real property or federal immovables

  (2.11) A port authority may acquire federal real property or federal immovables, if supplementary letters patent have been issued. For greater certainty, the federal real property or federal immovables become, on acquisition, real property or immovables other than federal real property or federal immovables.

• Marginal note:Lease or licence — other real property and immovables

  (2.12) A port authority may, for the purpose of operating the port, lease or license any real property or immovable that it holds, other than federal real property or federal immovables, subject to the limits in the port authority’s letters patent. The term of the lease or licence may not be more than the maximum term that the letters patent set out for such a lease or licence.

• Marginal note:Temporary use

  (2.2) A port authority may lease or license any real property or immovable it holds, other than federal real property or federal immovables, for temporary use under paragraph 28(2)(b).

• Marginal note:Application of provincial law

  (3) A grant may be effected by any instrument by which an interest in real property or a right in an immovable may be granted by a private person under the laws in force in the province in which the federal real property or federal immovable is situated.

Marginal note:Canadian Navigable Waters Act

47 The Canadian Navigable Waters Act does not apply to a work, as defined in section 2 of that Act, that has been exempted by a regulation made under section 62.

Marginal note:Land-use plan

• 48 (1) A port authority shall, within twelve months after the issuance of its letters patent, develop a detailed land-use plan that contains objectives and policies for the physical development of the real property and immovables that it manages, holds or occupies and that takes into account relevant social, economic and environmental matters and zoning by-laws that apply to neighbouring lands.

• Marginal note:Contents of plan

  (2) The land-use plan may

  • (a) prohibit the use of some or all of the real property and immovables for, or except for, certain purposes;

  • (b) prohibit the erecting of structures or works or certain types of structures or works; and

  • (c) subject to any regulations made under section 62 or subsection 64.1(1), regulate the type of structures or works that may be erected.

• Marginal note:Existing structures

  (3) A land-use plan shall not have the effect of preventing

  • (a) the use of any real property or immovable existing on the day on which the land-use plan comes into force for the purpose for which it was used on that day, so long as it continues to be used for that purpose; or

  • (b) the erecting or alteration of a structure or work that was authorized before the day on which the land-use plan comes into force if the erecting or alteration is carried out in accordance with the authorization.

• Marginal note:Publication of notice

  (4) A port authority shall, at least sixty days before the coming into force of a land-use plan, have notice of the plan published in a major newspaper published or distributed in the place where the port is situated.

• Marginal note:Content of notice

  (5) The notice shall include information as to where a copy of the plan, including any related documents necessary to understand it, may be obtained and an invitation to any interested person to make representations to the port authority with respect to the proposed plan within those sixty days and to attend a public meeting at a specified time and place.

• Marginal note:Adoption of plan

  (6) After the port authority considers any representations made by interested persons with respect to a proposed plan, it may adopt the plan.

• Marginal note:Notice of adopted plan

  (7) The port authority shall have notice of each land-use plan that it adopts, together with notice of the place at which a copy of the plan may be obtained, published in a major newspaper published or distributed in the place where the port is situated.

• Marginal note:Exception

  (8) A port authority need not comply with subsections (4) to (7) in respect of a proposed land-use plan that

  • (a) has previously been published pursuant to subsection (4), whether or not it has been changed as a result of representations made pursuant to subsection (5); or

  • (b) makes no substantive change to an existing plan.

• Marginal note:Statutory Instruments Act

  (9) Land-use plans are not regulations within the meaning of the Statutory Instruments Act.

Fees

Marginal note:Fixing of fees

• 49 (1) A port authority may fix fees to be paid in respect of

  • (a) ships, vehicles, aircraft and persons coming into or using the port;

  • (b) goods loaded on ships, unloaded from ships or transhipped by water within the limits of the port or moved across the port; and

  • (c) any service provided by the port authority, or any right or privilege conferred by it, in respect of the port.

• Marginal note:Interest

  (2) A port authority may fix the interest rate that it charges on overdue fees.

• Marginal note:Self-sustaining financing

  (3) The fees fixed by a port authority shall be at a level that permits it to operate on a self-sustaining financial basis and shall be fair and reasonable.

• Marginal note:Application to Crown

  (4) The fees and interest rate may be made binding on Her Majesty in right of Canada or a province.

• Marginal note:Application to military and police ships

  (5) The fees fixed under paragraphs (1)(a) and (b) do not apply in respect of a Canadian warship, naval auxiliary ship or other ship under the command of the Canadian Forces, a ship of a visiting force within the meaning of the Visiting Forces Act or any other ship while it is under the command of the Royal Canadian Mounted Police.

• Marginal note:Fees continued

  (6) A fee that is in force in respect of a port on the coming into force of this section continues in force for a period ending on the earlier of the expiration of six months and the date on which it is replaced by a fee fixed under subsection (1).

Marginal note:Discrimination among users

• 50 (1) A port authority shall not unjustly discriminate among users or classes of users of the port, give an undue or unreasonable preference to any user or class of user or subject any user or class of user to an undue or unreasonable disadvantage.

• Marginal note:Exception re commercially acceptable discrimination

  (2) It is not unjust discrimination and it is not an undue nor an unreasonable preference or disadvantage for a port authority to differentiate among users or classes of users on the basis of the volume or value of goods shipped or on any other basis that is generally commercially accepted.

Marginal note:Notice of new or revised fees

• 51 (1) Where a port authority proposes to fix a new fee or revise an existing fee for wharfage, berthage or harbour dues, it shall give notice of the proposal in accordance with this section and no fee shall come into force before the expiration of sixty days after the last of the notices is given.

• Marginal note:Contents of notice

  (2) The notice shall

  • (a) set out the particulars of the proposal;

  • (b) specify that a document containing more details about the proposal may be obtained from the port authority on request; and

  • (c) specify that persons interested in making representations in writing to the port authority about the proposal may do so by writing to the address set out in the notice.

• Marginal note:How notice is to be given

  (3) The port authority shall

  • (a) have the notice published in a major newspaper published or distributed in the place where the port is situated;

  • (b) send, by mail or by electronic means, a copy of the notice to

    • (i) organizations whose members will, in the opinion of the port authority, be affected by the new or revised fee, and

    • (ii) every user and other person who has, at least ten days before, notified the port authority of a desire to receive notices or announcements under this Part; and

  • (c) post an electronic version of the notice in a location that is generally accessible to persons who have access to what is commonly referred to as the Internet.

• Marginal note:Exception

  (4) The notice required by this section does not apply to any fees accepted in a contract under section 53.

Marginal note:Complaints

• 52 (1) Any interested person may at any time file a complaint with the Agency that there is unjust discrimination in a fee fixed under subsection 49(1), and the Agency shall consider the complaint without delay and report its findings to the port authority, and the port authority shall govern itself accordingly.

• Marginal note:Governor in Council may vary or rescind

  (2) Section 40 of the Canada Transportation Act applies, with such modifications as the circumstances require, to every report of the Agency made under subsection (1) as if the report were a decision made pursuant to that Act.

Marginal note:Fees by contract

53 A port authority may enter into an agreement, that the parties may agree to keep confidential, fixing an amount to be paid to the port authority in respect of the persons and things set out in paragraphs 49(1)(a) to (c) that is different from the fees fixed under those paragraphs.

Official Languages

Marginal note:Official Languages Act

54 The Official Languages Act applies to a port authority as a federal institution within the meaning of that Act.

Liquidation and Dissolution

Marginal note:Liquidation and dissolution

• 55 (1) The Governor in Council may, by issuing a certificate of intent to dissolve, require a port authority to liquidate its assets in accordance with the certificate or the regulations made under paragraph 27(1)(a) and may by a subsequent certificate of dissolution dissolve the port authority, and the letters patent are deemed to be revoked. The net proceeds of liquidation are to be paid on dissolution to Her Majesty in right of Canada.

• Marginal note:Dissolution where no liquidation

  (2) The Governor in Council may, by issuing a certificate of dissolution, dissolve a port authority without requiring the liquidation of its assets, in which case the obligations and assets of the port authority revert on dissolution to Her Majesty in right of Canada under the administration of the Minister.

• Marginal note:Publication in Canada Gazette

  (3) A certificate of dissolution issued under this section becomes effective thirty days after the date it is published in the Canada Gazette.

• Marginal note:Revocation

  (4) The Governor in Council may revoke a certificate of intent to dissolve at any time before the issuance of a certificate of dissolution by the issuance of a certificate of revocation of intent to dissolve.

• Marginal note:Effect of certificate

  (5) The revocation is effective on the date set out in the certificate of revocation and the port authority may then continue to carry on its activities.

Port Traffic Control

Marginal note:Traffic control zones

• 56 (1) Subject to any regulations made under section 62, a port authority may, for the purpose of promoting safe and efficient navigation or environmental protection in the waters of the port, with respect to ships or classes of ships,

  • (a) monitor ships about to enter or within the waters of the port;

  • (b) establish the practices and procedures to be followed by ships;

  • (c) require ships to have the capacity to use specified radio frequencies; and

  • (d) establish traffic control zones for the purposes of paragraphs (a) to (c).

• Marginal note:Clearance of ships to enter waters of a port

  (2) Subject to any regulations made under section 62, a port authority may

  • (a) require information to be given, for the purpose of obtaining a traffic clearance, by ships or classes of ships about to enter the port or within the port;

  • (b) impose the conditions under which a traffic clearance is to be granted; and

  • (c) require information to be given by ships after they have obtained a traffic clearance.

• Marginal note:Consistency

  (3) Subject to any regulations made under section 62, practices and procedures established by a port authority under subsection (1) shall not be inconsistent with national standards and practices for marine vessel traffic services, in particular those established under the Canada Shipping Act, 2001.

Marginal note:Notice

• 57 (1) A port authority shall take reasonable steps to bring notice of each practice and procedure proposed under paragraph 56(1)(b) to the attention of persons likely to be affected by it at least thirty days before the proposed effective date of the measure, and a reasonable opportunity within those thirty days shall be given to ship owners, masters, persons in charge of ships and other interested persons to make representations to the port authority with respect to it.

• Marginal note:Content of notice

  (2) The notice shall include information as to where a copy of the proposed measure, including any related documents necessary to understand it, may be obtained and an invitation to any interested person to make representations to the port authority with respect to it within those thirty days.

• Marginal note:Adoption of measures

  (3) After the port authority considers any representations made by interested persons with respect to a proposed measure, it may adopt the measure.

• Marginal note:Notice of adopted measure

  (4) The port authority shall take reasonable steps to bring notice of each measure that it adopts, together with notice of the place at which a copy of the measure may be obtained, to the attention of persons likely to be affected by it.

• Marginal note:Exception

  (5) Subsection (1) does not apply to a measure

  • (a) notice of which has been given pursuant to that subsection, whether or not it has been changed as a result of representations made pursuant to that subsection; or

  • (b) that makes no substantive change to an existing measure.

• Marginal note:Emergency situations

  (6) Subsection (1) does not apply where the port authority is satisfied that an urgent situation exists, but the port authority shall take reasonable steps to bring notice of the measure to the attention of any person likely to be affected by it as soon as possible after it comes into force.

Marginal note:Traffic control

• 58 (1) For the purpose of promoting safe and efficient navigation or environmental protection, a port authority may designate a person or a member of a class of persons, each of whom shall be furnished with a certificate of designation, to exercise the following powers with respect to ships about to enter or within the port or an area of the port:

  • (a) give a traffic clearance to a ship to enter, leave or proceed within the port or any area of the port;

  • (b) direct the master, the person in charge of the deck watch or any other person in charge of a ship or the pilot to provide information in respect of the ship specified by the designated person;

  • (c) direct a ship to use specified radio frequencies in communications with the port station or other ships; and

  • (d) subject to subsection (2), direct a ship, at a specified time or between specified times,

    • (i) to leave a dock, berth or other port facility,

    • (ii) to leave or refrain from entering any area, or

    • (iii) to proceed to or remain at a specified location.

• Marginal note:Preconditions

  (2) A person designated under subsection (1) may direct a ship to do or refrain from doing anything described in paragraph (1)(d) only if the person believes on reasonable grounds that any of the following circumstances exist:

  • (a) the non-availability of a berth required for the ship;

  • (b) pollution or a reasonable apprehension of pollution in the traffic control zone;

  • (c) the proximity of animals whose well-being could be endangered by the movement of the ship;

  • (d) an obstruction to navigation in the traffic control zone;

  • (e) the proximity of a ship in apparent difficulty or presenting a pollution threat or other hazard to life or property;

  • (f) the proximity of a ship navigating in an unsafe manner or with improperly functioning navigation equipment or radio equipment, or without charts or publications required by regulations made under paragraph 120(1)(b) of the Canada Shipping Act, 2001;

  • (g) vessel traffic congestion that constitutes an unacceptable risk to shipping, navigation, the public or the environment; or

  • (h) the efficiency of port operations could be compromised.

• Marginal note:Prohibition

  (3) No ship shall

  • (a) if it is required to obtain a traffic clearance, enter, leave or proceed within a port or a traffic control zone without having obtained the clearance; or

  • (b) if required to maintain direct communication with a person designated under subsection (1), proceed within a port or a traffic control zone unless it is able to do so.

Marginal note:Offences and punishment

• 59 (1) Subject to subsection (2), a person or ship is guilty of an offence and liable to a fine of not more than $5,000 where the offence is committed in respect of a ship of twenty metres in length or less, or to a fine of not more than $50,000 where the offence is committed in respect of a ship exceeding twenty metres in length, if the person or ship

  • (a) does not follow the practices and procedures established by a port authority under paragraph 56(1)(b) or have the capacity to use the radio frequencies specified by the port authority under that paragraph;

  • (b) does not do what a person designated under subsection 58(1) requires the person or the ship to do under that subsection;

  • (c) fails to comply with subsection 58(3); or

  • (d) knowingly makes a false or misleading statement, either orally or in writing, to a person designated under subsection 58(1).

• Marginal note:Defence available in certain cases

  (2) It is a defence to a charge under subsection (1) that the master, the person in charge of the deck watch or other person in charge of the ship or the pilot

  • (a) had reasonable grounds to believe that compliance would have imperilled life, the ship or any other ship or any property; and

  • (b) in the case of a charge under paragraph (1)(b), had notified the person designated under subsection 58(1) of the non-compliance and of the reasons for it as soon as possible after it took place.

• Marginal note:Proof of offence by ship

  (3) Where a ship is prosecuted for an offence under this section, it is sufficient proof that the ship has committed the offence to establish that the act or omission that constitutes the offence was committed by the master of the ship or any person on board the ship, whether or not the person on board has been identified.

Marginal note:Application to military and police ships

60 For greater certainty, Canadian warships, naval auxiliary ships and other ships under the command of the Canadian Forces, ships of a visiting force within the meaning of the Visiting Forces Act and any other ships while they are under the command of the Royal Canadian Mounted Police have access to Canadian ports.

Order and Safety

Marginal note:Order and safety

• 61 (1) Subject to any regulations made under section 62 or subsection 64.1(1), a port authority shall take appropriate measures for the maintenance of order and the safety of persons and property in the port.

• Marginal note:Marine transportation security

  (2) Subject to any regulations made under the Marine Transportation Security Act, a port authority shall take appropriate measures for the maintenance of marine transportation security.

Regulations

Marginal note:Regulations

• 62 (1) For the purposes of this Part, the Governor in Council may make regulations respecting

  • (a) the navigation and use by ships of the navigable waters in a port, including the mooring, berthing and loading and unloading of ships and equipment for the loading and unloading of ships;

  • (b) the use and environmental protection of a port, including the regulation or prohibition of equipment, structures, works and operations;

  • (c) the removal, destruction or disposal of any ship, part of a ship, structure, work or other thing that interferes with navigation in a port and provision for the recovery of the costs incurred;

  • (d) the maintenance of order and the safety of persons and property in a port;

  • (d.1) the information or documents that must be provided by the owner or the person in charge of a ship to the port authority;

  • (e) the regulation of persons, vehicles or aircraft in a port;

  • (f) the regulation or prohibition of the excavation, removal or deposit of material or of any other action that is likely to affect in any way the navigability of a port or to affect any of the lands adjacent to a port;

  • (g) the regulation or prohibition of the transportation, handling or storing, in a port, of explosives or other substances that, in the opinion of the Governor in Council, constitute or are likely to constitute a danger or hazard to life or property; and

  • (h) the obligations of a port authority in respect of federal real property and federal immovables under the management of the port authority.

• Marginal note:Application

  (2) A regulation made under subsection (1) may apply to only one port.

• Marginal note:Application to Crown

  (3) A regulation made under subsection (1) may be made binding on Her Majesty in right of Canada or a province.

• Marginal note:Transitional

  (4) Subject to subsection 49(6), any regulations made before the coming into force of this section with respect to a port in respect of which letters patent are issued to a port authority shall, to the extent that they are compatible with this Act, continue in force for a period ending on the earlier of the expiration of twelve months after the letters patent are issued and the date on which regulations to replace them are made under subsection (1) with respect to that port.

Marginal note:Powers re airport regulations

• 63 (1) A port authority has, in respect of the operation of an airport, the power to enforce regulations made by the Minister for the purpose of providing unobstructed airspace for the landing and taking off of aircraft at the airport.

• Marginal note:Regulating airports

  (2) Subject to its letters patent, a port authority

  • (a) shall make regulations in accordance with any agreement entered into by it with respect to an airport before the coming into force of this subsection; and

  • (b) may make regulations with the approval of the Governor in Council if there is no such agreement.

• Marginal note:Regulations

  (3) The regulations referred to in subsection (2) are for the regulation and control of the airport and all persons engaged in the operation of aircraft at the airport, including regulations prohibiting the landing or taking off of aircraft of a certain type or aircraft exhibiting a certain characteristic.

• Marginal note:Application to Crown

  (4) A regulation made under subsection (2) may be made binding on Her Majesty in right of Canada or a province.

• Marginal note:Transitional

  (5) Subject to subsection 49(6), any regulations made with respect to an airport before the coming into force of subsection (2) by a body that becomes a port authority under section 12 shall, to the extent that they are compatible with this Act, continue in force for a period ending on the earlier of

  • (a) the expiration of 12 months after letters patent are issued in respect of the port authority, and

  • (b) the date on which regulations to replace them are made under subsection (2) with respect to the airport.

Marginal note:Evidence of limits of navigable waters

64 A port authority may erect marks or signs to indicate the limits of the navigable waters under its jurisdiction and every mark or sign so erected is evidence of the limits of those waters.

Undertakings Situated in a Port

Regulations

Marginal note:Regulations

• 64.1 (1) The Governor in Council may make regulations respecting any undertaking or class of undertakings that is situated or proposed to be situated in a port, including regulations respecting the development, use and environmental protection of the port as it relates to the undertaking or class of undertakings.

• Marginal note:Included powers

  (2) Without limiting the generality of subsection (1), a regulation made under that subsection may

  • (a) designate the undertakings or classes of undertakings to which the regulations apply;

  • (b) confer any legislative, administrative, judicial or other power on any person or body that the Governor in Council considers necessary to effectively regulate the undertaking;

  • (c) confer on any person or body the power, exercisable in circumstances and subject to conditions similar to those applicable to the exercise of that power under the law of the province in which the undertaking is situated,

    • (i) to make orders requiring any person or body to cease any work, comply with the regulations or take any measure to remedy the consequences of any contravention of the regulations, or

    • (ii) to do any work that the person or body considers necessary and to recover the costs of that work;

  • (d) fix, or prescribe the manner of calculating, any charge to be paid in respect of the undertaking;

  • (e) fix, or prescribe the manner of calculating, the rate of interest to be charged on amounts owing under the regulations;

  • (f) establish offences punishable on summary conviction for contraventions of the regulations, if similar acts or omissions constitute an offence under the laws in force in the province in which the undertaking is situated, and set, for such offences, fines or terms of imprisonment, or both, that are not more than the fines or terms of imprisonment applicable under those laws;

  • (g) establish administrative monetary penalties for contraventions of the regulations, if similar acts or omissions are punishable by administrative monetary penalties under the laws in force in the province in which the undertaking is situated, and set the amount of each of those penalties at an amount that is not more than the amount applicable under those laws;

  • (h) set limits on the liability of, and establish defences and immunities for, any person or body exercising a power or performing a duty or function under the regulations;

  • (i) confer on any person, for the purpose of verifying compliance with the regulations, the power to enter a place, to inspect the place and to seize and detain any thing found in that place, in circumstances and subject to conditions similar to those applicable to the exercise of that power under the law of the province in which the undertaking is situated;

  • (j) require that security be given or a trust or fund be established to secure the performance of any obligation imposed under the regulations;

  • (k) prescribe rules respecting the confidentiality or disclosure of any information obtained under the regulations;

  • (l) provide for the retention or the disposal, including the destruction, of documents, regardless of medium, that are created or submitted under the regulations;

  • (m) prescribe rules of procedure for hearings to be held in relation to the undertaking, including rules for the issuance of subpoenas to require the appearance of persons and the production of documents and rules requiring that evidence be given under oath, or confer on any person or body the power to prescribe those rules; and

  • (n) provide for the arbitration of disputes arising under the regulations.

• Marginal note:Application to Crown

  (3) A regulation made under subsection (1) may be made binding on Her Majesty in right of Canada or a province.

Marginal note:Incorporation by reference

• 64.2 (1) A regulation made under subsection 64.1(1) may incorporate by reference any document produced by a person or body other than the Minister, including any Act of a province or legislative instrument made under such an Act, as it exists on a particular date or as it is amended from time to time, with any adaptations that the Governor in Council considers necessary.

• Marginal note:Existing power not limited

  (2) For greater certainty, the express power referred to in subsection (1) to incorporate a document by reference does not limit the power that otherwise exists to incorporate a document by reference in a regulation made under this Act.

Marginal note:Conflict with regulations under another Act

64.3 Regulations made under subsection 63(2) or under any other Act of Parliament prevail over regulations made under subsection 64.1(1) to the extent of any conflict or inconsistency between them, unless otherwise provided in the regulations made under subsection 64.1(1).

Marginal note:Conflict with rules

64.4 Regulations made under subsection 64.1(1) prevail over any by-laws, practices and procedures or other similar instruments, and land-use plans, made by a port authority to the extent of any conflict or inconsistency between them, unless otherwise provided in those regulations.

Marginal note:Non-application

64.5 Sections 108 to 129.19 do not apply to the administration and enforcement of and the contravention of a regulation made under subsection 64.1(1).

Agreements

Marginal note:Agreements — administration and enforcement

• 64.6 (1) The Minister may enter into agreements with any person or body, including the government of a province, with respect to the administration and enforcement of a regulation made under subsection 64.1(1).

• Marginal note:Dispute resolution

  (2) An agreement referred to in subsection (1) may provide for the arbitration, in accord­ance with the law of the province, of disputes arising from the interpretation or application of that agreement, in which case the Commercial Arbitration Act does not apply to the dispute.

Other Acts

Marginal note:Statutory Instruments Act

64.7 The Statutory Instruments Act does not apply to any legislative instrument made by a provincial official or body under the authority of a provincial law that is incorporated by reference in a regulation made under subsection 64.1(1).

Marginal note:Federal Courts Act

• 64.8 (1) A provincial official or body that exercises a power or performs a duty or function under a regulation made under subsection 64.1(1) is not a federal board, commission or other tribunal for the purposes of the Federal Courts Act.

• Marginal note:Review or appeal in provincial courts

  (2) Unless otherwise provided by a regulation made under subsection 64.1(1), if a power is conferred or a duty or function is imposed by a provincial law that is incorporated by reference in the regulation, the exercise of the power or the performance of the duty or function is subject to review by, or appeal to, the courts of the province in the same manner and to the same extent as if the provincial law applied.

Marginal note:Amounts collected

64.9 Payments collected by a provincial official or body under a regulation made under subsection 64.1(1) are not public money for the purposes of the Financial Administration Act.

Marginal note:Service Fees Act

64.91 For greater certainty, the Service Fees Act does not apply to any fee that is fixed under a provincial law that is incorporated by reference in a regulation made under subsection 64.1(1).

Limits on Liability, Defences and Immunities

Marginal note:Acts and omissions

64.92 In respect of any act or omission occurring in the exercise of a power or the performance of a duty or function under a regulation made under subsection 64.1(1),

• (a) Her Majesty in right of Canada is entitled to the same limits on liability, defences and immunities as those that would apply to Her Majesty in right of the province in which the undertaking that is the subject of the regulation is situated when Her Majesty in right of that province exercises such a power or performs such a duty or function under the law of that province; and

• (b) a port authority and any person or body exercising the power or performing the duty or function is entitled, unless otherwise provided by the regulation, to the same limits on liability, defences and immunities as those that would apply to a person or body when the person or body exercises such a power or performs such a duty or function under the law of the province in which the undertaking that is the subject of the regulation is situated.

Marginal note:Right or interest in port

64.93 No civil proceeding may be brought, no order may be made and no fine or monetary penalty may be imposed against Her Majesty in right of Canada or a port authority, in relation to an undertaking that is situated in a port, under regulations made under subsection 64.1(1), based on any right or interest held by Her Majesty or the port authority in that port.

PART 2Public Ports

Designation by Governor in Council

Marginal note:Designation by regulation

• 65 (1) The Governor in Council may, by regulation,

  • (a) designate as a public port any navigable waters within the jurisdiction of Parliament and any land covered by the navigable waters, if the land is under the administration of the Minister, including any related foreshore;

  • (b) define the limits of a public port; and

  • (c) designate any port facility under the administration of the Minister as a public port facility.

• Marginal note:Deemed public ports

  (2) Every port and port facility that on the coming into force of this section was a public harbour or public port facility to which the Public Harbours and Port Facilities Act applied is deemed to have been designated under subsection (1).

• Marginal note:Deemed public ports

  (3) With the exception of a port for which a port authority is incorporated under Part 1, every port and facility to which the Canada Ports Corporation Act applied on the coming into force of this section is deemed to have been designated under subsection (1).

• Marginal note:Deemed public ports

  (4) For greater certainty, the Governor in Council may make regulations under subsection (1) in respect of any public harbour or public port facility that is deemed under subsection (2) or (3) to have been designated and, in the case of a public port, define its limits.

• Marginal note:Evidence of limits of navigable waters

  (5) The Minister may have marks or signs erected to indicate the limits of the navigable waters of a public port and every mark or sign so erected is evidence of the limits of those waters.

• Marginal note:Repeal of designations

  (6) The Governor in Council may, by regulation, repeal the designation of a public port or public port facility made or deemed to have been made under this section.

• Marginal note:Orders continued

  (7) A termination order made under subsection 8(2) of the Public Harbours and Port Facilities Act is deemed to be a regulation made under subsection (6) and continues in force until it is repealed under the latter subsection.

Marginal note:Federal Real Property and Federal Immovables Act

• 66 (1) For the purposes of the Federal Real Property and Federal Immovables Act, the Minister has the administration of the federal real property and federal immovables that form part of a public port or public port facility.

• Marginal note:Other ports and facilities

  (2) The Minister does not have the administration of the federal real property and federal immovables that are under the administration of any other member of the Queen’s Privy Council for Canada.

• Marginal note:Power of Minister

  (3) For greater certainty, the repeal of the designation of a public port or public port facility does not terminate the application of the Federal Real Property and Federal Immovables Act to the federal real property and federal immovables that formed part of the port or facility and that are owned by Her Majesty in right of Canada.

Fees

Marginal note:Fixing of fees

• 67 (1) The Minister may fix the fees to be paid in respect of

  • (a) ships, vehicles, aircraft and persons coming into or using a public port or public port facility;

  • (b) goods loaded on ships, unloaded from ships or transhipped by water within the limits of a public port or stored in, or moved across, a public port facility; and

  • (c) any service provided by the Minister, or any right or privilege conferred by the Minister, in respect of the operation of a public port or public port facility.

• Marginal note:Interest

  (2) The Minister may fix the interest rate to be charged on overdue fees.

• Marginal note:Application to Crown

  (3) The fees and the interest rate may be made binding on Her Majesty in right of Canada or a province.

• Marginal note:Application to military and police ships

  (4) The fees fixed under paragraphs (1)(a) and (b) do not apply in respect of a Canadian warship, naval auxiliary ship or other ship under the command of the Canadian Forces, a ship of a visiting force within the meaning of the Visiting Forces Act or any other ship while it is under the command of the Royal Canadian Mounted Police.

Marginal note:Services

68 The Minister may enter into agreements to provide services, rights or privileges, as the Minister considers appropriate, at a public port or public port facility and may agree by contract to accept fees other than those fixed under subsection 67(1) for those services, rights and privileges.

Harbour Masters and Wharfingers

Marginal note:Harbour masters and wharfingers

• 69 (1) The Minister may appoint as a harbour master or wharfinger for all or part of a public port or public port facility any person who, in the Minister’s opinion, is qualified and assign responsibilities to that person, including the responsibility to collect fees and interest on fees.

• Marginal note:Remuneration

  (2) The Minister may fix the remuneration to be paid to a harbour master or wharfinger and the amounts of the remuneration may, notwithstanding anything in the Financial Administration Act, be paid out of the fees collected in respect of public ports and public port facilities.

• Marginal note:Transitional

  (3) An appointment as a harbour master or wharfinger made by the Minister under subsection 11(2) of the Public Harbours and Ports Facilities Act, and the remuneration determined by the Governor in Council under subsection 11(3) of that Act in respect of that appointment, continue in effect as though they had been made and fixed under this section.

Agreements

Marginal note:Agreements

70 The Minister may enter into agreements with any person or body in respect of the management or operation of a public port or public port facility, or a group of them.

Federal Real Property and Federal Immovables

Marginal note:Leases and licences

• 71 (1) Despite the Federal Real Property and Federal Immovables Act, the Minister may lease any federal real property or federal immovable that forms, or formed, part of a public port or public port facility or grant a licence in respect of the property, for twenty years or for a longer period with the approval of the Governor in Council.

• Marginal note:Application of provincial law

  (2) A lease or licence of any federal real property or federal immovable may be effected by any instrument by which, under the laws in force in the province in which that property is situated, real property or immovables may be leased or a licence may be granted by a private person.

Marginal note:Agreements for disposal or transfer

• 72 (1) The Minister may enter into agreements in respect of

  • (a) the disposal of all or part of the federal real property and federal immovables that formed part of a public port or public port facility by sale or any other means; and

  • (b) the transfer of the administration and control of all or part of the federal real property and federal immovables that formed part of a public port or public port facility to Her Majesty in right of a province.

• Marginal note:Content of agreements

  (2) The agreements may include

  • (a) provisions for the performance and enforcement of obligations under the agreements; and

  • (b) any other terms and conditions that the Minister considers appropriate.

• Marginal note:Security

  (3) The Minister may

  • (a) accept and hold on behalf of Her Majesty any security granted to Her Majesty under the agreements or any security granted in substitution for them; and

  • (b) release or realize on any security referred to in paragraph (a).

• Marginal note:Authority to carry out agreements

  (4) The Minister may take any measures that the Minister considers appropriate to carry out the agreements and to protect the interests or enforce the rights of Her Majesty under them.

• Marginal note:Disposal and transfer

  (5) The disposal or transfer of federal real property and federal immovables may be effected under the authority of this section or the Federal Real Property and Federal Immovables Act.

• Marginal note:Application of provincial law

  (6) The disposal or transfer of federal real property and federal immovables under this section may be effected by any instrument by which, under the laws in force in the province in which that property is situated, real property or immovables may be transferred by a private person.

• (7) [Repealed, 2008, c. 21, s. 39]

• Marginal note:Minister responsible

  (8) Subject to any regulations made under section 74, the Minister continues to have the management of public ports and public port facilities that the Minister has not disposed of or transferred.

General

Marginal note:Canadian Navigable Waters Act

73 The Canadian Navigable Waters Act does not apply to a work, as defined in section 2 of that Act, that has been exempted by a regulation made under section 74.

Regulations

Marginal note:Regulations

• 74 (1) The Governor in Council may make regulations for the management, control, development and use of public ports and public port facilities, including regulations respecting

  • (a) the navigation and use by ships of a public port, including the mooring, berthing and loading and unloading of ships and equipment for the loading and unloading of ships;

  • (b) the use and environmental protection of public ports and public port facilities, including the regulation or prohibition of equipment, structures, works and operations;

  • (c) the removal, destruction or disposal of any ship, part of a ship, structure, work or other thing that interferes with navigation within the limits of a public port and provision for the recovery of the costs incurred;

  • (d) the maintenance of order and the safety of persons and property within the limits of a public port or at a public port facility;

  • (d.1) the information or documents that must be provided by the owner or the person in charge of a ship to the Minister;

  • (e) the regulation of persons, vehicles or aircraft within the limits of a public port or at a public port facility;

  • (f) the regulation or prohibition of the excavation, removal or deposit of material or of any other action that is likely to affect in any way the navigability of a public port or the operation of a public port facility or to affect any of the lands adjacent to a port or facility; and

  • (g) the regulation or prohibition of the transportation, handling or storing, within the limits of a public port or at a public port facility, of explosives or other substances that, in the opinion of the Governor in Council, constitute or are likely to constitute a danger or hazard to life or property.

• Marginal note:Application

  (2) A regulation made under subsection (1) may apply to only one public port or public port facility.

• Marginal note:Application to Crown

  (3) A regulation made under subsection (1) may be made binding on Her Majesty in right of Canada or a province.

Marginal note:Coming into force of regulations

75 Regulations made under section 12 of the Public Harbours and Port Facilities Act are deemed to have been made under this Part and continue in force until

• (a) in the case of regulations in respect of rates, tolls, fees or other charges, they are repealed by the Minister; and

• (b) in any other case, they are repealed by regulations made under subsection 74(1).

Traffic Control

Marginal note:Traffic control

76 Subject to regulations made under subsection 74(1), a person or a member of a class of persons designated by the Minister under this section may take the measures necessary for the control of traffic in a public port, and sections 56 to 59 apply with such modifications as the circumstances require, except that, in making those modifications to section 58, the references in that section to a person or member of a class of persons designated under subsection 58(1) shall be taken to be references to a person or member of a class of persons designated under this section.

PART 3Seaway

Interpretation

Marginal note:Definitions

77 The definitions in this section apply in this Part.

Authority

Authority means The St. Lawrence Seaway Authority established by subsection 3(1) of the St. Lawrence Seaway Authority Act. (Administration)

not-for-profit corporation

not-for-profit corporation means a not-for-profit corporation described in subsection 80(5). (société sans but lucratif)

Objectives

Marginal note:Objectives

78 The objectives of this Part are to

• (a) promote a commercial approach to the operation of the Seaway;

• (b) protect the integrity of the Seaway;

• (c) protect the rights and interests of communities adjacent to the Seaway;

• (d) protect the long-term operation and viability of the Seaway as an integral part of Canada’s national transportation infrastructure;

• (e) promote the competitiveness of the Seaway;

• (f) protect the significant investment that the Government of Canada has made in respect of the Seaway;

• (g) encourage user involvement in the operation of the Seaway; and

• (h) encourage new cooperative arrangements with the United States for the management of the transportation facilities and services in the Great Lakes-St. Lawrence region.

Powers of Minister

Marginal note:Powers of Minister

79 The Minister may

• (a) acquire lands for, and construct, maintain and operate the works that are necessary for, the operation of the Seaway, including works either wholly in Canada or in conjunction with works undertaken by an appropriate authority in the United States;

• (b) construct, maintain and operate any works in connection with the Seaway that the Governor in Council may deem necessary to fulfil an obligation undertaken or to be undertaken by Canada pursuant to any present or future agreement between Canada and the United States;

• (c) operate and manage bridges, including acquire lands for, and construct, maintain and operate, alone or jointly or in conjunction with an appropriate authority in the United States, bridges connecting Canada with the United States and, to that end or as incidental to it, acquire shares or property of any bridge company;

• (d) acquire lands for, and construct or otherwise acquire, maintain and operate, any works or other property that the Governor in Council may deem necessary for works undertaken pursuant to this Part;

• (e) fix the fees to be charged for the use of any property under the Minister’s administration that forms part of the Seaway or for any service provided or any right or privilege conferred in connection with the Seaway; and

• (f) take any measures that may be necessary for the purposes of any present or future agreement in respect of the Seaway.

Marginal note:Transfer

• 80 (1) The Minister may direct the Authority to transfer, on the terms and conditions specified by the Minister, all or part of its property or undertakings to the Minister, any other member of the Queen’s Privy Council for Canada, any other person or any body established under an international agreement, and the Authority shall immediately comply.

• Marginal note:Transfer by Minister

  (2) Where any property or undertaking is transferred to the Minister under subsection (1), the Minister may transfer it to any other member of the Queen’s Privy Council for Canada, any other person or any body established under an international agreement.

• Marginal note:Federal Real Property and Federal Immovables Act

  (3) The Federal Real Property and Federal Immovables Act does not apply to a transfer under subsection (1) or (2) unless it is a sale of land to a person or body other than the Minister or any other member of the Queen’s Privy Council for Canada.

• Marginal note:Surplus Crown Assets Act

  (4) The Surplus Crown Assets Act does not apply to a transfer under subsection (1) or (2).

• Marginal note:Agreements

  (5) The Minister may enter into agreements in respect of all or part of the Seaway and the property or undertakings referred to in subsection (1) or (2) and those agreements may be with a not-for-profit corporation that accords a major role to Seaway users, in particular in the way in which directors of the corporation are appointed and in its operations, or, where the Minister considers it appropriate, with any other person or any body established under an international agreement.

• Marginal note:Contents of agreements

  (6) An agreement may include any terms and conditions that the Minister considers appropriate, including provisions respecting

  • (a) the transfer of all or part of the property or undertakings referred to in subsection (1) or (2);

  • (b) the management and operation of all or part of the Seaway or the property or undertakings referred to in subsection (1) or (2);

  • (c) the construction, maintenance and operation of all or part of the Seaway;

  • (d) the charging of fees;

  • (e) the performance and enforcement of obligations under the agreement;

  • (f) the transfer of officers and employees of the Authority;

  • (g) the making of financial contributions or grants or the giving of any other financial assistance;

  • (h) the imposition of additional obligations of financial management; and

  • (i) where the agreement is with a body referred to in subsection (5), the application of any of the provisions of this Part relating to an agreement with a not-for-profit corporation or other person referred to in that subsection.

• Marginal note:Existing rights

  (7) A transfer of land under paragraph (6)(a) does not affect a right or interest of any person or body of persons, including an Indian band within the meaning of the Indian Act, that existed in the land before the coming into force of this Part.

• Marginal note:Termination of agreement

  (8) The terms of an agreement with a not-for-profit corporation or other person shall include

  • (a) a clause providing for the termination of the agreement in the event of the establishment of a body under an international agreement in respect of the Seaway; and

  • (b) a clause providing for the protection of the rights of privacy of persons affected by the agreement and, in that regard, may include a clause requiring the not-for-profit corporation or other person to obligate itself to provide for privacy protection in its contracts with or in respect of affected persons, including employment contracts and collective agreements.

• Marginal note:Authority to carry out agreements

  (9) The Minister may take any measures that the Minister considers appropriate to carry out an agreement and to protect the interests or enforce the rights of Her Majesty under an agreement, including, if the agreement so provides, making advances to, and receiving advances from, the person with whom the agreement is made and determining the rates of interest that apply.

• Marginal note:Security

  (10) The Minister may

  • (a) accept and hold on behalf of Her Majesty any security granted to Her Majesty under the agreement or any security granted in substitution for it; and

  • (b) release or realize on any security referred to in paragraph (a).

• Marginal note:Obligations

  (11) The obligations imposed in respect of a not-for-profit corporation under sections 83 to 89 apply equally to a person who has entered into an agreement under subsection 80(5) to the extent that the agreement so provides.

Marginal note:Consolidated Revenue Fund

81 An amount payable by the Minister under an agreement entered into under subsection 80(5) is payable out of the Consolidated Revenue Fund.

Marginal note:Rights and obligations preserved

82 The rights and obligations of a person who enters into an agreement under subsection 80(5) are, where the agreement so provides and the Minister has published a notice in the Canada Gazette to that effect, as follows:

• (a) the name of the person shall be substituted for that of the Authority in every contract, collective agreement, lease, licence, permit or other document entered into or granted by the Authority, other than those set out specifically or by class in the agreement and notice; and

• (b) the personal property or movable, and any rights related to it, that the Authority administers, or the title to which it holds, on behalf of Her Majesty in right of Canada, whether or not in its own name, other than those set out specifically or by class in the agreement and notice, become the property and rights of the person.

Annual Meeting

Marginal note:Meeting open to public

• 83 (1) A not-for-profit corporation shall each year hold a meeting that is open to the public in each city mentioned in the agreement, in premises large enough to accommodate the anticipated attendance, to inform the public about its activities in respect of the operation of the Seaway.

• Marginal note:Notice of meeting

  (2) The not-for-profit corporation shall, at least thirty days before a meeting, have notice of the meeting published in a major newspaper published or distributed in each city mentioned in the agreement, setting out the time and location of the meeting and specifying that the financial statements relating to the operation of the Seaway are available to the public at its principal place of business.

• Marginal note:Availability to public

  (3) The not-for-profit corporation shall ensure, at each meeting,

  • (a) that there are available a sufficient number of copies of the most recent audited annual financial statements relating to the operation of the Seaway for the persons present at the meeting; and

  • (b) that its chief executive officer and directors are available to answer questions about the operation of the Seaway posed by the persons present at the meeting.

Financial Management

Marginal note:Public to get financial statements

• 84 (1) A not-for-profit corporation shall make available for inspection by the public, at its principal place of business during normal business hours at least thirty days before the meeting, its audited annual financial statements that deal with its activities in respect of the operation of the Seaway for the preceding fiscal year.

• Marginal note:Contents

  (2) The financial statements shall be prepared in accordance with generally accepted accounting principles and consist of at least the following:

  • (a) a balance sheet;

  • (b) a statement of retained earnings;

  • (c) an income statement; and

  • (d) a statement of changes in financial position.

• Marginal note:Remuneration

  (3) The total remuneration that each director or officer receives in a year from the corporation, including any fee, allowance or other benefit, shall be set out in the annual financial statements for that year.

• Marginal note:Regulations

  (4) The Governor in Council may make regulations in respect of the preparation, form and content of the documents referred to in paragraphs (2)(a) to (d) and the information referred to in subsection (3).

Marginal note:Books and systems

• 85 (1) A not-for-profit corporation shall, in respect of its activities in respect of the operation of the Seaway, ensure that

  • (a) books of account and accounting records are kept; and

  • (b) financial and management control and information systems and management practices are maintained.

• Marginal note:Keeping of books

  (2) The books, records, systems and practices shall be kept and maintained in a manner that will provide reasonable assurance that

  • (a) the assets of the Seaway managed by the corporation are safeguarded and controlled;

  • (b) the transactions of the corporation in relation to the Seaway are in accordance with this Part; and

  • (c) the financial, human and physical resources of the corporation in relation to the Seaway are managed economically and efficiently and the operations of the Seaway are carried out effectively.

Marginal note:Audit

86 The Minister may appoint an auditor to audit the books of account and accounting records referred to in subsection 85(1) to ensure compliance with the agreement.

Special Examinations

Marginal note:Special examinations

• 87 (1) A not-for-profit corporation shall have a special examination carried out to determine whether the books, records, systems and practices referred to in subsection 85(1) were, in the period under examination, maintained in a manner that provided reasonable assurance that they met the requirements of subsection 85(2).

• Marginal note:Time for examination

  (2) A special examination shall be carried out at least once every five years and at any additional times that the Minister may require.

• Marginal note:Plan

  (3) Before beginning a special examination, the examiner shall survey the systems and practices of the corporation in relation to the operation of the Seaway and submit a plan for the examination, including a statement of the criteria to be applied, to the corporation and, in the case where the Minister has required the special examination to be carried out, to the Minister.

• Marginal note:Resolution of disagreements

  (4) Any disagreement between the examiner and the corporation with respect to the plan is to be resolved by the Minister.

• Marginal note:Reliance on internal audit

  (5) The examiner shall, to the extent the examiner considers it feasible, rely on an internal audit carried out by the corporation in relation to the operation of the Seaway.

Marginal note:Report

• 88 (1) The examiner shall, on completion of the special examination, submit a report of the findings to the Minister and to the corporation.

• Marginal note:Contents

  (2) The examiner’s report shall include

  • (a) a statement as to whether in the examiner’s opinion, with respect to the criteria established under subsection 87(3), there is reasonable assurance that there are no significant deficiencies in the systems and practices examined; and

  • (b) a statement of the extent to which the examiner relied on internal audits.

• Marginal note:Notice of report

  (3) A not-for-profit corporation shall, as soon as is practicable after receiving the report, have notice of the report published in a major newspaper published or distributed in each city mentioned in the agreement.

• Marginal note:Report available to public

  (4) The corporation shall make the report available for inspection by the public at its principal place of business during normal business hours.

Marginal note:Examiner — other qualified auditor

89 Where, in the opinion of the Minister, someone other than the special examiner chosen by a not-for-profit corporation should carry out a special examination, the Minister may, after consulting with the corporation, appoint another auditor and may, after again consulting with the corporation, remove that auditor at any time.

Property

Marginal note:Federal Real Property and Federal Immovables Act

90 For the purposes of the Federal Real Property and Federal Immovables Act, the Minister or other member of the Queen’s Privy Council for Canada to whom any federal real property or federal immovable is transferred under subsection 80(1) or (2) has the administration of that property.

Marginal note:Powers re property of Her Majesty

• 91 (1) Where an agreement entered into under subsection 80(5) so provides, the person who has entered into the agreement

  • (a) need not pay compensation in respect of the use of the property that is owned by Her Majesty and managed by the person;

  • (b) may, notwithstanding the Financial Administration Act, retain and use the revenue received in respect of the property for the purpose of operating the Seaway;

  • (c) may lease the property under the person’s management and grant licences in respect of it;

  • (d) shall undertake and defend any legal proceedings with respect to the management of the property; and

  • (e) shall discharge all obligations with respect to the management of the property.

• Marginal note:Legal proceedings

  (2) A civil, criminal or administrative action or proceeding with respect to any federal real property or federal immovable that a person who has entered into an agreement under subsection 80(5) manages, or any property that the person holds, or with respect to any act or omission occurring on the property, shall be taken by or against the person and not the Crown.

• Marginal note:Federal Real Property and Federal Immovables Act does not apply

  (3) The Federal Real Property and Federal Immovables Act, other than section 12, does not apply to a lease or licence referred to in paragraph (1)(c).

• Marginal note:Application of provincial law

  (4) A lease or licence may be effected by any instrument by which real property or immovables may be leased or a licence may be granted by a private person under the laws in force in the province in which the property is situated.

• Marginal note:No pledge of property

  (5) A person who has entered into an agreement under subsection 80(5) may not mortgage, hypothecate, pledge or otherwise create a security interest in the property the person manages under that agreement in any way other than, where the agreement so provides, to pledge its revenues for the term of the agreement.

Fees

Marginal note:Fees

• 92 (1) Where an agreement under subsection 80(5) so provides and subject to subsection (2), the person who has entered into the agreement may fix fees that

  • (a) are for the use of any property under the person’s management, any service that the person provides or any right or privilege that the person confers; and

  • (b) take into account the obligations of the person under the agreement and the aim to provide a revenue sufficient to cover the costs of the management, maintenance and operation of the property and the maintenance of a capital and operating reserve fund.

• Marginal note:Fees by international agreement

  (2) Where an agreement in respect of fees is entered into by Canada and the United States and is in force, the person who has entered into an agreement under subsection 80(5) shall charge the fees fixed under the international agreement in accordance with the directions of the Governor in Council.

• Marginal note:Coming into force of fees

  (3) The tariffs of tolls established by the Authority under section 16 of the St. Lawrence Seaway Authority Act continue in force until they are repealed by the person who has entered into an agreement under subsection 80(5) and no fee fixed by the person under subsection (1) shall come into force until that repeal.

Marginal note:Discrimination among users

• 93 (1) A person who has entered into an agreement under subsection 80(5) shall not unjustly discriminate among users or classes of users of the Seaway, give an undue or unreasonable preference to any user or class of user or subject any user or class of user to an undue or unreasonable disadvantage with respect to the Seaway.

• Marginal note:Exception re commercially acceptable discrimination

  (2) It is not unjust discrimination and it is not an undue nor an unreasonable preference or disadvantage to differentiate among users or classes of users on the basis of the volume or value of goods shipped or on any other basis that is generally commercially accepted.

Marginal note:Notice of fees

• 94 (1) A notice setting out the fees fixed under subsection 92(1) shall be filed with the Agency and the fees may be charged from the date of filing.

• Marginal note:Complaints

  (2) Any interested person may at any time file a complaint with the Agency that there is unjust discrimination in a fee referred to in subsection (1), and the Agency shall consider the complaint without delay and report its findings to the Minister or to the person who fixed the fee, as the case may be, and they shall govern themselves accordingly.

• Marginal note:Governor in Council may vary or rescind

  (3) Section 40 of the Canada Transportation Act applies, with such modifications as the circumstances require, to every report of the Agency made under subsection (2) as if the report were a decision made pursuant to that Act.

Official Languages Act

Marginal note:Official Languages Act

95 The Official Languages Act applies, in respect of the management of properties and undertakings that are the subject of an agreement entered into under subsection 80(5), to the person who has entered into the agreement as if the person were a federal institution within the meaning of that Act.

Dissolution

Marginal note:Dissolution of Authority

• 96 (1) The Authority is dissolved on the date fixed by the Governor in Council and all its assets and obligations devolve to Her Majesty in right of Canada under the administration of the Minister.

• Marginal note:Shares of subsidiary companies

  (2) On the dissolution of the Authority,

  • (a) all the shares of its subsidiaries are transferred to, and held by, the Minister on behalf of Her Majesty in right of Canada;

  • (b) the subsidiaries shall take all necessary steps to ensure that their shareholder records are brought up to date in regard to the transfer; and

  • (c) the Minister becomes the appropriate minister for the purposes of the Financial Administration Act.

• Marginal note:Consequences for former directors

  (3) The directors of the Authority and of its subsidiaries, other than the Great Lakes Pilotage Authority, Ltd., cease to hold office on the date fixed under subsection (1).

• Marginal note:Consequences for officers

  (4) Neither the Minister nor a person who has entered into an agreement under subsection 80(5) is bound by any severance agreement entered into between the Authority or any of its subsidiaries and any of their officers after December 1, 1995.

Marginal note:Location of Authority

• 97 (1) Until the dissolution of the Authority by virtue of section 96, the Corporate Services of the Authority shall be located in Cornwall, Ontario.

• Marginal note:Location of head office

  (2) A not-for-profit corporation shall maintain its head office, including Corporate Services in respect of its Seaway operations, at Cornwall, Ontario.

Regulations

Marginal note:Regulations

• 98 (1) The Governor in Council may make regulations for the management, control, development and use of the Seaway and property and undertakings in connection with the Seaway, including regulations respecting

  • (a) the navigation and use by ships of the navigable waters of the Seaway, including the mooring, berthing and loading and unloading of ships and equipment for the loading and unloading of ships;

  • (b) the use and environmental protection of the Seaway or any land used in connection with the Seaway, including the regulation or prohibition of equipment, structures, works and operations;

  • (c) the removal, destruction or disposal of any ship, part of a ship, structure, work or other thing that interferes with navigation in the Seaway and the provision for the recovery of the costs incurred;

  • (d) the maintenance of order and the safety of persons and property in the Seaway or on any land used in connection with the Seaway;

  • (d.1) the information or documents that must be provided by the owner or the person in charge of a ship to the Minister or to any person who has entered into an agreement under subsection 80(5);

  • (e) the regulation of persons, vehicles or aircraft in the Seaway or on any land used in connection with the Seaway;

  • (f) the regulation or prohibition of the excavation, removal or deposit of material or of any other action that is likely to affect in any way the navigability or operation of the Seaway or to affect any of the lands adjacent to the Seaway; and

  • (g) the regulation or prohibition of the transportation, handling or storing in the Seaway, or on any land used in connection with the Seaway, of explosives or other substances that, in the opinion of the Governor in Council, constitute or are likely to constitute a danger or hazard to life or property.

• Marginal note:Application to Crown

  (2) A regulation made under subsection (1) may be made binding on Her Majesty in right of Canada or a province.

• Marginal note:Deeming provision

  (3) Regulations made by the Authority under section 20 of the St. Lawrence Seaway Authority Act are, to the extent that they are compatible with this Act, deemed to have been made by the Governor in Council under this section.

Traffic Control

Marginal note:Traffic control

99 Subject to regulations made under section 98, a person or a member of a class of persons designated by the Minister or, where an agreement under subsection 80(5) so provides, by the person who has entered into the agreement, may take the measures necessary for the control of traffic in the Seaway, and sections 56 to 59 apply with such modifications as the circumstances require, except that, in making those modifications to section 58, the references in that section to a person or member of a class of persons designated under subsection 58(1) shall be taken to be references to a person or member of a class of persons designated under this section.

General

Marginal note:Powers of United States authority

100 The appropriate authority in the United States in respect of the Seaway has the powers necessary to enable it to act, in Canada, jointly or in conjunction with the Minister or with any person who has entered into an agreement under subsection 80(5).

Marginal note:Canadian Navigable Waters Act

101 The Canadian Navigable Waters Act does not apply to a work, as defined in section 2 of that Act, that has been exempted by a regulation made under section 98.

Marginal note:International Boundary Waters Treaty Act

102 Nothing in this Part affects the operation of the International Boundary Waters Treaty Act.

PART 4Regulations and Enforcement

Interpretation

Marginal note:Definitions

103 The definitions in this section apply in this Part.

court

court means

• (a) the Ontario Court (General Division);

• (b) the Superior Court of Quebec;

• (c) the Trial Division of the Supreme Court of Newfoundland and Labrador;

• (d) the Court of Queen’s Bench for New Brunswick, Manitoba, Saskatchewan and Alberta;

• (e) the Supreme Court of Nova Scotia, British Columbia and Prince Edward Island;

• (f) the Supreme Court of Yukon, the Supreme Court of the Northwest Territories and the Nunavut Court of Justice; and

• (g) the Federal Court. (tribunal)

court of appeal

court of appeal means, in the province in which an order referred to in subsection 119(3) is made, the court of appeal for that province as defined in section 2 of the Criminal Code. It includes the Federal Court of Appeal. (tribunal d’appel)

Regulations

Marginal note:Regulations

• 104 (1) The Governor in Council may make regulations respecting the navigation and use of the navigable waters of a natural or man-made harbour, other than a harbour to which Part 1 or 2 applies, including regulations for the safety of persons and ships in those waters.

• Marginal note:Application

  (2) Regulations made under subsection (1) may apply only to navigable waters designated by the Governor in Council.

• Marginal note:Application to Crown

  (3) A regulation made under subsection (1) may be made binding on Her Majesty in right of Canada or a province.

Marginal note:Regulations

• 105 (1) The Governor in Council may make regulations generally for carrying out the purposes of this Act.

• Marginal note:Application to Crown

  (2) A regulation made under subsection (1) may be made binding on Her Majesty in right of Canada or a province.

Traffic Control

Marginal note:Traffic control

106 Subject to regulations made under section 104, a person or a member of a class of persons designated by the Minister under this section may take the measures necessary for the control of traffic in the navigable waters designated by the Governor in Council under subsection 104(2), and sections 56 to 59 apply with such modifications as the circumstances require, except that, in making those modifications to section 58, the references in that section to a person or member of a class of persons designated under subsection 58(1) shall be taken to be references to a person or member of a class of persons designated under this section.

Liability for Fees

Marginal note:Ships and cargo

• 107 (1) The fees and interest fixed under this Act in respect of a ship or goods shall be paid by the owner or the person in charge of the ship or the owner of the goods without prejudice to any right of recourse the owner or person may have in law against a third party for the recovery of the amounts so paid.

• Marginal note:Fees for use

  (2) The fees and interest fixed under this Act in respect of a person, vehicle or aircraft shall be paid by that person or by the owner of the vehicle or aircraft.

Enforcement

Designation

Marginal note:Enforcement officers

• 108 (1) The Minister may designate any person or member of a class of persons as an enforcement officer for any of the purposes of this Act or the regulations and shall furnish each person so designated with a certificate of designation setting out the purposes and areas for which the enforcement officer is designated.

• Marginal note:Area of designation

  (2) A designation as an enforcement officer is in respect of any of the following areas:

  • (a) a port in respect of which letters patent have been issued to a port authority;

  • (b) a public port or public port facility;

  • (c) all or part of the Seaway; or

  • (d) all or part of the navigable waters designated under subsection 104(2).

• Marginal note:Certificate to be produced

  (3) In carrying out duties and functions under this Act, an enforcement officer shall, on request, produce the certificate of designation to the individual appearing to be in charge of any ship, vehicle, aircraft, premises or other place or any goods, in respect of which the officer is acting.

Inspection

Marginal note:Powers of enforcement officers

• 109 (1) An enforcement officer may, for the purpose of ensuring compliance with this Act, other than sections 58, 76, 99 and 106, or of a regulation made under this Act, other than under subsection 27(1),

  • (a) board any ship or enter any vehicle, aircraft, premises or other place, other than living quarters, and carry out any inspection the officer considers necessary; and

  • (b) require any person appearing to be in charge of the ship, vehicle, aircraft, premises or other place to produce for inspection, or for the purpose of making copies or extracts, any log book, document or paper.

• Marginal note:Operation of computer systems and copying equipment

  (2) In carrying out an inspection of a place, an enforcement officer may

  • (a) use or cause to be used any computer system or data processing system at the place to examine any data contained in, or available to, the system;

  • (b) reproduce any record, or cause it to be reproduced from the data, in the form of a print-out or other intelligible output and remove the print-out or other output for examination or copying; and

  • (c) use or cause to be used any copying equipment at the place to make copies of any books, records, electronic data or other documents.

Marginal note:Duty to assist enforcement officers

110 The owner or person who is in possession or control of a place that is inspected under section 109, and every person who is found in the place, shall

• (a) give the enforcement officer all reasonable assistance to enable the officer to carry out the inspection and exercise any power conferred by that section; and

• (b) provide the enforcement officer with any information relevant to the administration of this Act or the regulations that the officer may reasonably require.

Search and Seizure

Marginal note:Warrant

• 111 (1) An enforcement officer with a warrant issued under subsection (3) may, at any reasonable time, search any ship, vehicle, aircraft, premises or other place if the officer believes on reasonable grounds that there is in the place

  • (a) anything on or in respect of which an offence under this Act is being or has been committed; or

  • (b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence under this Act.

• Marginal note:Seizure

  (2) An enforcement officer may seize anything found in the course of a search that the officer believes on reasonable grounds is a thing referred to in paragraph (1)(b).

• Marginal note:Warrant

  (3) A justice may issue a warrant authorizing the enforcement officer named in it to carry out a search, subject to any conditions that may be specified in the warrant, where on ex parte application the justice is satisfied by information on oath that the circumstances set out in subsection (1) exist.

• Marginal note:Use of force

  (4) In executing a warrant, an enforcement officer shall not use force unless the use of force is specifically authorized in the warrant and the officer is accompanied by a peace officer.

Marginal note:Where warrant not necessary

• 112 (1) Subject to subsection (2), an enforcement officer may exercise the powers described in subsection 111(1) without a warrant if the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practical to obtain one.

• Marginal note:Living quarters

  (2) An enforcement officer may not search living quarters without a warrant unless the officer first obtains the consent of the occupant.

Marginal note:Powers during search

113 In carrying out a search of a place under section 111 or 112, an enforcement officer may exercise the powers described in section 109.

Marginal note:Entry

114 An enforcement officer or any person accompanying an enforcement officer may, while carrying out an inspection or search under this Act, enter on and pass through or over private property without the owner of the property having the right to object to that use of the property.

Detention of Ships

Marginal note:Detention — enforcement officer

• 115 (1) An enforcement officer may make a detention order in respect of a ship or goods carried on a ship if the officer believes on reasonable grounds

  • (a) that the ship or the owner or person in charge of the ship or goods has, in respect of the ship or goods, contravened any provision of this Act or the regulations;

  • (b) that an amount is due and payable for fees or interest imposed under this Act; or

  • (c) that property that is managed by a port authority, the Minister or a person who has entered into an agreement under subsection 80(5) has been damaged by the ship or through the fault or negligence of a member of the crew of the ship acting in the course of employment or under the orders of a superior officer.

• Marginal note:Detention — other

  (2) A person designated under subsection 58(1) may make a detention order in respect of a ship or goods if the person believes on reasonable grounds that an offence described in subsection 59(1) has been committed by or in respect of the ship.

• Marginal note:Geographical application of section

  (3) The power to make a detention order under this section may be exercised only within the area specified in the designation of the enforcement officer or person designated under subsection 58(1).

• Marginal note:Order to be in writing

  (4) A detention order made under subsection (1) or (2) shall be in writing and be addressed to all persons who, at the place where the ship is or will be, are authorized to give a clearance in respect of the ship.

Marginal note:Notice of detention order to be served on master

• 116 (1) Where a detention order under subsection 115(1) or (2) is made in respect of a ship, notice of the order shall be served on the master of the ship

  • (a) by delivering a copy of it personally to the master; or

  • (b) if personal service is not reasonably practicable,

    • (i) by leaving a copy of it for the master with the person on board who is, or appears to be, in charge of the ship, or

    • (ii) by leaving a copy of it with the owner of the ship residing in Canada or, if the owner is unknown or cannot be found, fixing a copy of it to a prominent part of the ship.

• Marginal note:Offence to depart while under detention

  (2) Where notice of a detention order in respect of a ship is served under subsection (1) and, during the term of the detention order, the master or owner of the ship gives an order for the ship to depart from the port in which it is detained, the master or owner, as the case may be, is guilty of an offence.

• Marginal note:Duty of persons authorized to give clearance

  (3) Subject to subsection (4), no person to whom a detention order is addressed in accordance with subsection 115(4) shall, after receipt of the order, give clearance in respect of the ship to which the order relates.

• Marginal note:When clearance shall be given

  (4) A person to whom a detention order is addressed in accordance with subsection 115(4) and who has received the order shall give clearance in respect of the ship to which the order relates if the person believes on reasonable grounds that

  • (a) security in the amount of $100,000 has been given to, and has been determined satisfactory by, the port authority, the Minister or the person who has entered into an agreement under subsection 80(5), as the case may be;

  • (a.1) the ship has not been charged with an offence under this Act within 30 days after the making of the detention order;

  • (b) the ship has been charged with an offence under this Act within thirty days after the making of the detention order and

    • (i) security satisfactory to the Minister of not more than $5,000 is given to Her Majesty in right of Canada, or

    • (ii) proceedings in respect of the alleged offence that gave rise to the making of the detention order are discontinued;

  • (c) an amount is due and payable by the ship in respect of fees imposed under this Act and there has been deposited in court security in an amount not exceeding the amount of the fees, including interest, and of a kind satisfactory to the port authority, to the Minister or to the person who has entered into an agreement under subsection 80(5), as the case may be;

  • (d) an amount is claimed against the ship for damages referred to in paragraph 115(1)(c) and there has been deposited in court security in an amount not exceeding the amount of the damages, as estimated by the port authority, the Minister or the person who has entered into an agreement under subsection 80(5), as the case may be, and of a kind satisfactory to them; or

  • (e) an amount satisfactory to the port authority, to the Minister or to the person who has entered into an agreement under subsection 80(5), as the case may be, has been paid to the port authority, the Minister or the person in respect of the ship in respect of the fees payable or the damages referred to in paragraph 115(1)(c).

• Marginal note:Court may determine amount of security

  (5) Where the owner or master of a ship disputes the amount of security demanded under paragraph (4)(c) or (d), the owner may apply to a court to determine the amount of security.

Marginal note:Sale of ship where no appearance and no security

• 117 (1) A port authority, the Minister or a person who has entered into an agreement under subsection 80(5), as the case may be, may apply to a court for an order authorizing the sale of a ship where

  • (a) the ship is detained under a detention order in respect of an offence under this Act;

  • (b) the ship has been charged with an offence under this Act within thirty days after the making of the detention order;

  • (c) no one has appeared on behalf of the ship to answer to the charge within thirty days after the laying of the charge; and

  • (d) the security referred to in paragraph 116(4)(a) or (b) has not been given.

• Marginal note:Sale of ship where no appearance and no security

  (2) A port authority, the Minister or a person who has entered into an agreement under subsection 80(5), as the case may be, may apply to a court for an order authorizing the sale of a ship where

  • (a) the ship is detained under a detention order for non-payment of fees or interest;

  • (b) proceedings have been commenced against the ship within thirty days after the making of the detention order;

  • (c) no one has appeared or filed a response in the proceedings on behalf of the ship within thirty days after the commencement of the proceedings; and

  • (d) the security referred to in paragraph 116(4)(a) or (c) has not been given.

• Marginal note:Sale of ship where no appearance and no security

  (3) A port authority, the Minister or a person who has entered into an agreement under subsection 80(5), as the case may be, may apply to a court for an order authorizing the sale of a ship where

  • (a) the ship is detained under a detention order in respect of damages referred to in paragraph 115(1)(c);

  • (b) proceedings have been commenced against the ship within thirty days after the making of the detention order;

  • (c) no one has appeared or filed a response in the proceedings on behalf of the ship within thirty days after the commencement of the proceedings; and

  • (d) the security referred to in paragraph 116(4)(a) or (d) has not been given.

• Marginal note:Sale of ship where appearance but no security

  (4) A port authority, the Minister or a person who has entered into an agreement under subsection 80(5), as the case may be, may apply to a court for an order authorizing the sale of a ship where

  • (a) the ship is detained under a detention order for one of the reasons referred to in paragraphs 115(1)(a) to (c);

  • (b) the ship has been charged with an offence under this Act or proceedings have been brought against it in respect of the non-payment of fees or damages referred to in paragraph 115(1)(c) within thirty days after the making of the detention order;

  • (c) within thirty days after the day on which the ship was charged with the offence or the proceedings were commenced, someone has appeared or filed a response on behalf of the ship but the security referred to in subsection 116(4) has not been given; and

  • (d) the ship is convicted or found liable, as the case may be, and the fine imposed or the amount of the damages and interest is not immediately paid.

Marginal note:Notice

• 118 (1) As soon as is feasible after making an application for the sale of a ship under section 117, the port authority, the Minister or the person who has entered into an agreement under subsection 80(5), as the case may be, shall give notice of the application by registered mail to

  • (a) the registrar of the register in which the ship is recorded;

  • (b) the holder of any mortgage against the ship that is registered on the register referred to in paragraph (a); and

  • (c) the holder of any maritime lien against the ship and the holder of any like interest, if the holder is known to the port authority, the Minister or the person at the time of application.

• Marginal note:Day notice deemed to be given

  (2) A notice sent by registered mail is deemed to have been given to the person to whom it was sent on the day on which an acknowledgement of receipt is received by the port authority, the Minister or the person.

• Marginal note:Relief from giving notice

  (3) Where the court seized of an application for the sale of a ship is satisfied that it is appropriate to do so, the court may relieve the port authority, the Minister or the person of the obligation to give the notice referred to in subsection (1), or authorize them to give the notice in any other manner the court considers appropriate.

Marginal note:Claiming interest

• 119 (1) Where an application is made for the sale of a ship, the following persons may apply within the periods stated to the court seized of the application for an order described in subsection (2):

  • (a) any person referred to in paragraph 118(1)(b) or (c), within sixty days after the notice required under that paragraph is given to the person; and

  • (b) any other person who claims an interest in the ship as a mortgagee or as the holder of a maritime lien or any like interest, within sixty days after the application is made.

• Marginal note:Order

  (2) A court seized of an application made under subsection (1) shall grant the applicant an order declaring the nature, extent and priority of the applicant’s interest at the time of the commission of the offence, the non-payment of the fees or interest or the causing of damages if it is made to appear to the satisfaction of the court that the applicant

  • (a) acquired the interest in good faith before the act or omission for which the ship was detained; and

  • (b) is innocent of any complicity or collusion in respect of the act or omission for which the ship was detained.

• Marginal note:Appeal

  (3) A person who makes an application under subsection (1), and the port authority, the Minister or the person who has entered into an agreement under subsection 80(5), as the case may be, may appeal to the court of appeal from an order referred to in subsection (2).

• Marginal note:Applications under subsection (1) to be heard first

  (4) A court shall not hear an application for the sale of a ship until all applications made under subsection (1) in respect of the ship have been heard.

• Marginal note:Court may authorize sale

  (5) A court seized of an application for the sale of a ship may

  • (a) authorize the port authority, the Minister or the person who has entered into an agreement under subsection 80(5), as the case may be, to sell the ship in the manner and subject to the terms and conditions the court considers appropriate; and

  • (b) on application by the port authority, the Minister or the person, as the case may be, give directions as to the ranking of the interests of persons who have obtained an order referred to in subsection (2).

Marginal note:Payment of proceeds

• 120 (1) If a ship is sold under an order, the proceeds of the sale shall be applied first to satisfy claims for wages of crew members under the Canada Shipping Act, 2001 and then to satisfy the following claims in order of priority:

  • (a) the following amount:

    • (i) the maximum fine that could have been imposed for the offence in a case where subsection 117(1) applies,

    • (ii) the fees and interest due and payable in a case where subsection 117(2) applies,

    • (iii) the amount of the damages in a case where subsection 117(3) applies, or

    • (iv) the fine actually imposed or the amount for which the ship is found liable in a case where subsection 117(4) applies;

  • (b) the costs of the detention and sale; and

  • (c) the interests of persons who have obtained an order referred to in subsection 119(2), according to the ranking directed by the court under paragraph 119(5)(b).

• Marginal note:Surplus

  (2) Any surplus of the proceeds of sale remaining after all claims have been satisfied shall be paid to the person registered as the owner of the ship or, in the absence of any registration, to the person who owns the ship.

• Marginal note:Proceedings against owner

  (3) Where the proceeds of sale of a ship are insufficient to satisfy the claims described in paragraph (1)(a) or (b), the port authority, the Minister or the person who has entered into an agreement under subsection 80(5), as the case may be, may proceed against the owner of the ship for the balance owing.

• Marginal note:Clear title

  (4) On selling a ship pursuant to an order, the port authority, the Minister or the person who has entered into an agreement under subsection 80(5), as the case may be, may, by bill of sale, give the purchaser a valid title to the ship free from any mortgage or other claim that is in existence at the time of the sale.

• Marginal note:Registrability not implied

  (5) Nothing in subsection (4) is to be interpreted as meaning that the ship may be registered in the name of the purchaser.

• Marginal note:Not duty paid

  (6) No ship sold pursuant to this section is deemed to have been duty paid under the Customs Tariff by reason only of that sale.

• Marginal note:At risk, cost and charges of owner

  (7) Every seizure and detention made under this Act shall be at the risk, cost and charges of the owner of the ship or goods until all amounts due or fines imposed, together with all costs and charges incurred in the seizure and detention and the costs of any conviction obtained, have been paid in full.

Other Powers

Marginal note:Sale of perishable goods

121 Where, in the opinion of an enforcement officer, any goods that have been seized and detained under this Act, or that have been abandoned, are likely to rot, spoil or otherwise perish, the officer may sell or otherwise dispose of the goods in the manner and for the price that is reasonable in the circumstances, and the proceeds of the disposition are to be credited toward payment of the amount due or payable in respect of the ship or goods and the expenses incurred in connection with the detention and sale.

Marginal note:Lien on ships

• 122 (1) A port authority, the Minister or a person who has entered into an agreement under subsection 80(5), as the case may be, has at all times a lien on a ship and on the proceeds of its disposition for an amount owing to the port authority, the Minister or the person, and the lien has priority over all other rights, interests, claims and demands, other than claims for wages of crew members under the Canada Shipping Act, 2001, if the amount is owing in respect of

  • (a) fees and interest in respect of the ship or goods carried on the ship; or

  • (b) damage to property caused by the ship or through the fault or negligence of a member of the crew of the ship acting in the course of employment or under the orders of a superior officer.

• Marginal note:Lien on goods

  (2) A port authority, the Minister or a person who has entered into an agreement under subsection 80(5), as the case may be, has at all times a lien on goods on the property under their jurisdiction for fees and interest owing to them in respect of the goods, the lien having priority over all other rights, interests, claims and demands and they may seize the goods.

Marginal note:Obstruction of ports

• 123 (1) Where an enforcement officer is of the opinion that a ship or goods left or abandoned within the enforcement officer’s area of designation as provided in subsection 108(2), impede, interfere with or render difficult or unsafe the use of that area, the officer may direct the person who appears to be in charge of the ship or goods to remove the ship or goods to a place that the officer considers suitable within or outside the area.

• Marginal note:Detention and removal

  (2) If a person fails to remove a ship or goods as directed by an enforcement officer under subsection (1) or if no person appears to be in charge of the ship or goods, the officer may detain the ship or goods and remove them to a place that the officer considers suitable, and the costs of the detention and removal are recoverable in the same manner as fees payable under this Act.

Marginal note:Rights exercisable

124 The right of a port authority, the Minister or a person who has entered into an agreement under subsection 80(5) to detain a ship or seize goods under this Act is exercisable whether or not title to or possession of the ship or goods is, at the time of the exercise of the right, in the same person as the person who held the title or possession at the time when, in the opinion of the port authority, the Minister or the person, the amount owing first became due and payable.

Marginal note:Other remedies

125 Whether or not a port authority, the Minister or a person who has entered into an agreement under subsection 80(5) exercises the right to detain ships and seize goods under this Act, they may proceed against the owner of a ship or goods in any court of competent jurisdiction for the amount owing to them, or for the balance of that amount in the event of the sale of the ship or goods, and may also exercise against the owner of the ship or goods any other right or remedy available at law.

Offences and Punishment

Marginal note:Offence

126 A person is guilty of an offence if the person

• (a) fails to comply with any reasonable requirement of an enforcement officer in the course of carrying out duties and functions under this Act;

• (b) knowingly makes a false or misleading statement, either orally or in writing, to an enforcement officer; or

• (c) otherwise obstructs or hinders an enforcement officer.

Marginal note:Offence and fine

• 127 (1) A person or ship that contravenes a provision of this Act, except section 107, or of the regulations made under paragraph 27(1)(a), or of the regulations made under this Act for which no penalty is otherwise provided is guilty of an offence and liable to a fine of not more than $5,000 in the case of an individual, and of not more than $50,000 in the case of a corporation or ship.

• Marginal note:Proof of offence by ship

  (1.1) If a ship is prosecuted for an offence under a provision of this Act, except section 107, or of the regulations, it is sufficient proof that the ship has committed the offence to establish that the act or omission that constitutes the offence was committed by the master of the ship or any person on board the ship, whether or not the person on board has been identified.

• Marginal note:By-laws

  (1.2) No person is guilty of an offence under this Act for a contravention of a by-law made under section 30.

• Marginal note:Defence

  (2) No person or ship shall be found guilty of an offence under this Act if the person or ship establishes that the person or ship exercised due diligence to prevent its commission.

• Marginal note:Code of conduct

  (3) Notwithstanding subsection (1), a director or officer of a port authority is not guilty of an offence under this Act for non-compliance with the code of conduct set out in the letters patent of the port authority.

Marginal note:Separate offence

• 128 (1) When an offence under this Act is committed by a person or ship on more than one day or is continued by a person or ship for more than one day, it is deemed to be a separate offence for each day on which it is committed or continued.

• Marginal note:Limitation period

  (2) Proceedings in respect of an offence under this Act may be commenced at any time within, but not later than, one year after the time when the subject-matter of the proceedings arose.

Marginal note:Order to comply

• 129 (1) If a person or ship is guilty of an offence under Part 1 or the regulations made under paragraph 27(1)(a), a court in which proceedings in respect of the offence are taken may, in addition to any punishment it may impose, order the person or ship to comply with those provisions for the contravention of which the person or ship is convicted.

• Marginal note:Civil remedy not affected

  (2) No civil remedy for an act or omission is suspended or affected by reason that the act or omission is an offence under Part 1 or the regulations made under paragraph 27(1)(a).

Administrative Monetary Penalties

Marginal note:Definition of Appeal Tribunal

129.01 For the purposes of sections 129.06, 129.08 and 129.1 to 129.13, Appeal Tribunal means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act.

Marginal note:Violations

129.02 Every person or ship that contravenes a provision or instruction designated under paragraph 129.03(a) commits a violation and is liable to an administrative monetary penalty not exceeding the maximum established by regulation.

Marginal note:Regulations

129.03 The Governor in Council may make regulations

• (a) designating any of the following as a provision or instruction whose contravention may be proceeded with as a violation, namely,

  • (i) any provision of this Act, other than paragraphs 59(1)(d) and 126(b),

  • (ii) any provision of the regulations, or

  • (iii) any instruction that may be given under the regulations;

• (b) establishing the maximum administrative monetary penalty for a particular violation, which may not exceed $5,000 in the case of an individual and $25,000 in the case of a corporation or ship;

• (c) establishing criteria to be taken into account in determining the penalty;

• (d) designating provisions or instructions the contravention of which, if continued on more than one day, constitutes a separate violation in respect of each day during which the violation is continued;

• (e) respecting the service of the notice that is required to be served under subsection 129.05(1), including the manner and proof of service and the circumstances under which the notice is deemed to be served; and

• (f) generally, for carrying out the purposes and provisions of this section and sections 129.04 to 129.17.

Marginal note:Criteria for penalty

129.04 The administrative monetary penalty imposed is, in each case, to be determined taking into account

• (a) the purpose of the penalty, which is to promote compliance with this Act and not to punish;

• (b) the seriousness of the violation, including the frequency and duration of the conduct;

• (c) the history of the person or ship that has been served with the notice of violation with respect to any prior violation or conviction under this Act within the five-year period immediately before the violation; and

• (d) any other criteria established under paragraph 129.03(c).

Marginal note:Notice of violation

• 129.05 (1) If an enforcement officer believes on reasonable grounds that a person or ship has committed a violation, the officer may issue, and shall cause to be served on the person or ship, a notice of violation.

• Marginal note:Content of notice

  (2) The Minister may establish the form and content of notices of violation, but each notice of violation shall

  • (a) name the person or ship believed to have committed the violation;

  • (b) identify the violation;

  • (c) set out the administrative monetary penalty that the person or ship is liable to pay;

  • (d) set out the particulars concerning the time for and manner of paying the penalty and the time for and manner of requesting a review; and

  • (e) inform the person or ship that, if they do not pay the penalty or request a review in accordance with the particulars set out in the notice, they will be deemed to have committed the violation and the penalty set out in the notice will be imposed.

Marginal note:Option

129.06 A person or ship that has been served with a notice of violation shall either pay the penalty set out in the notice or file with the Appeal Tribunal a written request for a review of the facts of the alleged violation or of the amount of the penalty.

Marginal note:Payment of penalty

129.07 If the person or ship pays the penalty in accordance with the particulars set out in the notice of violation, the person or ship is deemed to have committed the violation and proceedings in respect of the violation are ended.

Marginal note:Request for review

• 129.08 (1) A request for a review shall be filed with the Appeal Tribunal at the address set out in the notice of violation on or before the date specified in the notice or within any further time that the Appeal Tribunal, on application, may allow.

• Marginal note:Time and place for review

  (2) On receipt of the request, the Appeal Tribunal shall appoint a time and place for the review and shall so notify, in writing, the Minister and the person or ship that filed the request.

• Marginal note:Review procedure

  (3) The member of the Appeal Tribunal who is assigned to conduct the review shall provide the Minister and the person or ship that filed the request with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations.

• Marginal note:Burden of proof

  (4) The burden of establishing that a person or ship has committed the violation identified in the notice is on the Minister.

• Marginal note:Person or ship not compelled to testify

  (5) A person or ship that is alleged to have committed a violation is not required, and may not be compelled, to give any evidence or testimony in the matter.

Marginal note:Failure to pay penalty or request review

129.09 A person or ship that neither pays the penalty nor files a request for a review in accordance with the particulars set out in the notice of violation is deemed to have committed the violation.

Marginal note:Determination by Appeal Tribunal member

• 129.1 (1) At the conclusion of a review under section 129.08, the member of the Appeal Tribunal who conducts the review shall without delay inform the person or ship and the Minister of the member’s determination on the review.

• Marginal note:No violation

  (2) If the member determines that the person or ship has not committed the alleged violation, then, subject to section 129.11, no further proceedings may be taken against the person or ship in respect of the alleged violation.

• Marginal note:Violation

  (3) If the member determines that the person or ship has committed the alleged violation, then the member shall also inform the person or ship and the Minister of the administrative monetary penalty determined by the member to be payable in respect of the violation.

Marginal note:Right of appeal

• 129.11 (1) The Minister or a person or ship affected by a determination made under section 129.1 may, within 30 days after the determination, appeal it to the Appeal Tribunal.

• Marginal note:Loss of right of appeal

  (2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

• Marginal note:Disposition of appeal

  (3) The appeal panel of the Appeal Tribunal that is assigned to hear the appeal may dispose of the appeal by dismissing it or allowing it and, in allowing the appeal, the panel may substitute its decision for the determination appealed against.

• Marginal note:Obligation to inform

  (4) If the appeal panel finds that a person or ship has committed the alleged violation, the panel shall without delay inform the person or ship of the finding and of the administrative monetary penalty determined by the panel to be payable in respect of the violation.

Marginal note:Debts due to Her Majesty

129.12 The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction:

• (a) unless a review of the facts of the alleged violation or the amount of the penalty is requested in accordance with the particulars set out in the notice of violation, the amount of a penalty set out in the notice, beginning on the day on which the notice was served;

• (b) the amount of a penalty determined by a member of the Appeal Tribunal under section 129.1 or decided by the appeal panel of the Appeal Tribunal under section 129.11, beginning on the day on which the respective determination or decision was made; and

• (c) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in paragraph (a) or (b).

Marginal note:Certificate

• 129.13 (1) All or part of a debt referred to in section 129.12 in respect of which there is a default of payment may be certified by the Appeal Tribunal at the request of the Minister.

• Marginal note:Judgments

  (2) On production in any superior court, a certificate made under subsection (1) is to be registered in that court and, when registered, has the same force and effect, and all proceedings may be taken on it, as if it were a judgment obtained in that court for a debt of the amount specified in it and all reasonable costs and charges attendant in its registration.

Marginal note:Directors and officers of corporations

129.14 If a corporation commits a violation, every person who at the time of the commission of the violation was a director or officer of the corporation is a party to and liable for the violation unless the act or omission constituting the violation took place without the person’s knowledge or consent or the person exercised due diligence to prevent the commission of the violation.

Marginal note:Vicarious liability — acts of employees, agents and mandataries

129.15 A person or ship is liable for a violation that is committed by their employee acting within the scope of their employment or their agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary who actually committed the violation is identified or proceeded against, unless the person or ship establishes that the violation was committed without the person’s or ship’s knowledge or consent.

Marginal note:Violations not offences

129.16 For greater certainty, a violation is not an offence. Accordingly, section 126 of the Criminal Code does not apply in respect of a violation.

Marginal note:Due diligence available

129.17 Due diligence is a defence in a proceeding in respect of a violation.

General Provisions

Marginal note:How act or omission may be proceeded with

129.18 If an act or an omission can be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.

Marginal note:Time limit

• 129.19 (1) No proceedings in respect of a violation or a prosecution for an offence may be commenced later than one year after the subject-matter of the proceedings became known to the Minister.

• Marginal note:Certification by Minister

  (2) A document appearing to have been issued by the Minister, certifying the day on which the subject-matter of any proceedings became known to the Minister, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is, in the absence of evidence to the contrary, proof that the Minister became aware of the subject-matter on that day.

PART 5Human Resources

Seaway

Marginal note:Successor rights

130 On the coming into force of an agreement entered into under subsection 80(5), sections 44 to 46 of the Canada Labour Code apply as if

• (a) a sale of a business had taken place between the St. Lawrence Seaway Authority and the person who has entered into the agreement; and

• (b) the employees designated under section 131 for the property or undertaking that is the subject of the agreement were employees of the business.

Marginal note:Designation of employees

131 The Minister may designate any employee who performs duties or functions in respect of properties or undertakings that are the subject of an agreement entered into under subsection 80(5) as a designated employee for that property or undertaking.

Local Port Corporations

Marginal note:Successor rights

132 On the continuance of a local port corporation under section 12 as a port authority, sections 44 to 46 of the Canada Labour Code apply as if

• (a) a sale of a business had taken place between the local port corporation and the port authority; and

• (b) the employees of the local port corporation were employees of the business.

Harbour Commissions

Marginal note:Successor rights

133 Where, under section 10, letters patent are issued to a harbour commission continuing it as a port authority, sections 44 to 46 of the Canada Labour Code apply as if

• (a) a sale of a business had taken place between the harbour commission and the port authority; and

• (b) the employees of the harbour commission were employees of the business.

Non-corporate Ports of Canada Ports Corporation

Marginal note:Designation by Minister

134 For the purposes of sections 135 to 137, the Minister may designate any employee of the Canada Ports Corporation who performs duties or functions in respect of a non-corporate port, within the meaning of the Canada Ports Corporation Act, as a designated employee for that port.

Marginal note:Successor rights

• 135 (1) Where, under section 12, letters patent as a port authority are issued to a non-corporate port, sections 44 to 46 of the Canada Labour Code apply as if

  • (a) a sale of a business had taken place between the Canada Ports Corporation and the port authority; and

  • (b) the employees designated under section 134 for that non-corporate port were employees of the business.

• Marginal note:Successor rights

  (2) Notwithstanding any provision of the Canada Labour Code to the contrary, that Act applies after the date of the repeal of the Canada Ports Corporation Act in respect of the employment of the employees designated under section 134 in respect of non-corporate ports, other than non-corporate ports that are continued as port authorities under section 12, and, for those purposes, sections 44 to 46 and 189 of the Canada Labour Code apply as if a sale of a business had taken place between the Canada Ports Corporation and the Minister on behalf of Her Majesty.

• Marginal note:Deemed continuous

  (3) The employment of the designated employees is deemed to be continuous.

Marginal note:Minister’s powers

• 136 (1) The Minister may, on behalf of Her Majesty, appoint any employees that the Minister considers appropriate for the operation of a non-corporate port, other than a non-corporate port continued as a port authority under section 12, and may, subject to any collective agreement in force, determine the terms and conditions of employment and remuneration, assign duties and functions and terminate employment in respect of those employees and of the employees whose employment is continued under subsection 135(2).

• Marginal note:Government Employees Compensation Act

  (2) For the purposes of the Government Employees Compensation Act, the employees referred to in subsection (1) are deemed to be employees in the federal public administration.

Marginal note:Delegation

137 The Minister may delegate the powers and responsibilities of Her Majesty as employer under Part I of the Canada Labour Code to any person the Minister considers appropriate.

Marginal note:Federal Public Sector Labour Relations Act

138 For greater certainty, the Federal Public Sector Labour Relations Act does not apply to designated employees of a non-corporate port that is continued as a port authority under section 12, or to employees appointed under subsection 136(1), after the date of the repeal of the Canada Ports Corporation Act.

Comparable Employee Benefits

Marginal note:Public Service Superannuation Act

138.1 For the purposes of section 40.1 of the Public Service Superannuation Act, the continuance or incorporation of a local port corporation or a non-corporate port as a port authority under section 12 is deemed to be a transfer or divestiture, by Her Majesty in right of Canada, of the administration of a service to a person.

Marginal note:Pension transfer agreement

138.2 A person who has entered into an agreement under subsection 80(5) and every port authority shall take all reasonable steps to negotiate with the President of the Treasury Board a pension transfer agreement in accordance with section 40.2 of the Public Service Superannuation Act in respect of employees referred to in paragraph 130(b), 132(b) or 135(1)(b), as the case may be.

Marginal note:Employee benefits

138.3 For the purposes of sections 138.4 to 138.6, “employee benefits” includes coverage and benefits in respect of employer-sponsored pension plans and of life, income protection, health care and dental care insurance plans.

Marginal note:Seaway

138.4 A person who has entered into an agreement under subsection 80(5) shall, in respect of an employee referred to in paragraph 130(b), provide employee benefits that

• (a) begin on the day of the transfer under paragraph 80(6)(f) or, if there is transitional coverage provided in respect of the person under section 40.1 of the Public Service Superannuation Act, on the expiry of the period of transitional coverage;

• (b) are comparable to the employee benefits of the employee immediately before the transfer under paragraph 80(6)(f) and at a rate of contribution by the employee not greater than the rate that was applicable in respect of the employee immediately before that transfer; and

• (c) end on the day on which an agreement to the contrary comes into force between the person and the bargaining agent representing the employee or, in the case of an unrepresented employee, the person and the employee.

Marginal note:Local port corporations

138.5 A port authority shall, in respect of an employee referred to in paragraph 132(b), provide employee benefits that

• (a) begin on the day on which the port authority is continued under subsection 12(1) or, if there is transitional coverage provided in respect of the port authority under section 40.1 of the Public Service Superannuation Act, on the expiry of the period of transitional coverage;

• (b) are comparable to the employee benefits of the employee immediately before ceasing to be an employee of the local port corporation and at a rate of contribution by the employee not greater than the rate that was applicable in respect of the employee immediately before ceasing to be an employee of the local port corporation; and

• (c) end on the day on which an agreement to the contrary comes into force between the port authority and the bargaining agent representing the employee or, in the case of an unrepresented employee, the port authority and the employee.

Marginal note:Non-corporate ports

138.6 A port authority shall, in respect of an employee referred to in paragraph 135(1)(b), provide employee benefits that

• (a) begin on the day on which the port authority is deemed to be incorporated under subsection 12(1) or, if there is transitional coverage provided in respect of the port authority under section 40.1 of the Public Service Superannuation Act, on the expiry of the period of transitional coverage;

• (b) are comparable to the employee benefits of the employee immediately before ceasing to be an employee of the Canada Ports Corporation and at a rate of contribution by the employee not greater than the rate that was applicable in respect of the employee immediately before ceasing to be an employee of the Canada Ports Corporation; and

• (c) end on the day on which an agreement to the contrary comes into force between the port authority and the bargaining agent representing the employee or, in the case of an unrepresented employee, the port authority and the employee.

PART 6Miscellaneous

Marginal note:Dissolution of Canada Ports Corporation

• 139 (1) On the repeal of the Canada Ports Corporation Act, the Canada Ports Corporation is dissolved and all its assets and obligations devolve to the Crown under the administration of the Minister.

• Marginal note:Consequences for former directors

  (2) The directors of the Canada Ports Corporation cease to hold office on the coming into force of section 197 and have no right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from any servant or agent of Her Majesty for ceasing to hold office by virtue of this section.

• Marginal note:Consequences for officers

  (3) Neither the Canada Ports Corporation nor Her Majesty in right of Canada is bound by any severance agreement entered into between the Corporation and any of its officers after December 1, 1995.

140 [Repealed before coming into force, 2008, c. 20, s. 3]

Marginal note:Regulations — The Jacques-Cartier and Champlain Bridges Inc.

141 The Governor in Council may, by regulation, provide that any provision of the St. Lawrence Seaway Authority Act and the regulations made under that Act, including provisions imposing punishment, apply to The Jacques-Cartier and Champlain Bridges Inc., with any modifications that the Governor in Council considers appropriate.

Marginal note:Regulations — The Seaway International Bridge Corporation, Ltd.

142 The Governor in Council may, by regulation, provide that any provision of the St. Lawrence Seaway Authority Act and the regulations made under that Act, including provisions imposing punishment, apply to The Seaway International Bridge Corporation, Ltd., with any modifications that the Governor in Council considers appropriate.

143 [Repealed, 2013, c. 33, s. 211]

Marginal note:Review of Act

144 A review of the provisions and operation of this Act shall be completed by the Minister during the fifth year after this Act is assented to. The Minister shall cause a report of the results of the review to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the report is completed.

PART 7Amendments to the Pilotage Act

145 to 158 [Amendments]

PART 8Consequential Amendments, Repeals and Coming into Force

Consequential Amendments

159 to 196 [Amendments]

Repeals

197 to 204.1 [Repeals]

Coming into Force

Marginal note:Coming into force

• Footnote ^*205 (1) Subject to this section, this Act comes into force on the later of January 1, 1999 and 150 days after the day on which it receives Royal Assent unless, before that day, the Governor in Council, by order, declares that this Act or any provision of this Act comes into force on a day or days to be fixed by order of the Governor in Council.

• Marginal note:Coming into force

  (2) Part 3, or any of its provisions, sections 141, 142, 146 and 158, subsection 159(2), sections 160, 161, 171, 172, 174, 175, 176, 178, 179, 185, 186, 187, 188, 191, 192, 193, 198 to 201, 203 to 204.1 and any items of the schedule come into force on a day or days to be fixed by order of the Governor in Council.

  • Return to footnote ^*[Note: Sections 1 to 4, Part 3, other than sections 81, 83 to 89, 92 to 95 and 99, sections 130, 131, 138.2 to 138.4, 141 and 142 in force August 26, 1998, sections 56 to 59, 81, 83 to 89, 92 to 95, 99, 103 to 129, 145 to 158, subsection 159(2) and sections 161, 170, 172, 174, 176, 188, 191 and 193 in force October 1, 1998, see SI/98-88; sections 160, 164 to 166, 171, 175, 187 and 192 in force December 1, 1998, see SI/98-117; section 203 in force December 1, 1998, see SI/98-118; the provisions contemplated by subsection 205(1) and not yet in force come into force on a day or days to be fixed by order of the Governor in Council see SI/98-131; sections 5 to 55 and 60 to 64, subsections 65(1), (2) and (4) to (7), sections 66 to 76, 132, 138.1, 138.5 and 144, the portion of section 162 before the reference to the Fraser River Port Authority, and the references to the Halifax Port Authority, the Montreal Port Authority and the Vancouver Port Authority, sections 163, 167 and 168, the portion of section 169 before the reference to the Canada Ports Corporation, and the references to the Halifax Port Corporation, the Montreal Port Corporation and the Vancouver Port Corporation, the portion of section 180 before the reference to the Canada Ports Corporation, and the references to the Halifax Port Corporation, the Montreal Port Corporation and the Vancouver Port Corporation, section 181, the portion of section 184 before the reference to the Fraser River Port Authority, and the references to the Halifax Port Authority, the Montreal Port Authority and the Vancouver Port Authority, section 189, the portion of section 194 before the reference to the Fraser River Port Authority, and the references to the Halifax Port Authority, the Montreal Port Authority and the Vancouver Port Authority, section 202 and items 2, 4 and 17 of Part 1 of the schedule in force March 1, 1999, see SI/99-15; sections 133 to 138, 138.6 and 139, in section 162, the references to the Fraser River Port Authority, the Prince Rupert Port Authority, the Quebec Port Authority, the Saguenay Port Authority, the Saint John Port Authority, the Sept-Îles Port Authority, the St. John’s Port Authority and the Trois-Rivières Port Authority, in section 169, the references to the Port of Quebec Corporation and the Prince Rupert Port Corporation, in section 180, the references to the Port of Quebec Corporation, the Prince Rupert Port Corporation, the Saint John Port Corporation and the St. John’s Port Corporation, sections 182 and 182.1, in section 184, the references to the Fraser River Port Authority, the Prince Rupert Port Authority, the Quebec Port Authority, the Saguenay Port Authority, the Saint John Port Authority, the Sept-Îles Port Authority, the St. John’s Port Authority and the Trois-Rivières Port Authority, in section 194, the references to the Fraser River Port Authority, the Prince Rupert Port Authority, the Quebec Port Authority, the Saguenay Port Authority, the Saint John Port Authority, the Sept-Îles Port Authority, the St. John’s Port Authority and the Trois-Rivières Port Authority and items 1, 8 to 13 and 16 of Part 1 of the schedule in force May 1, 1999, see SI/99-39; in section 162, the reference to the Toronto Port Authority, in section 184, the reference to the Toronto Port Authority, in section 194, the reference to the Toronto Port Authority, sections 204 and 204.1 and item 15 of Part 1 of the schedule in force June 8, 1999, see SI/99-55; in section 162, the references to the Nanaimo Port Authority, the North Fraser Port Authority, the Port Alberni Port Authority and the Thunder Bay Port Authority, in section 184, the references to the Nanaimo Port Authority, the North Fraser Port Authority, the Port Alberni Port Authority and the Thunder Bay Port Authority, in section 194, the references to the Nanaimo Port Authority, the North Fraser Port Authority, the Port Alberni Port Authority and the Thunder Bay Port Authority and items 5 to 7 and 14 of Part 1 of the schedule in force July 1, 1999, see SI/99-62; in section 162, the reference to the Windsor Port Authority, in section 184, the reference to the Windsor Port Authority, in section 194, the reference to the Windsor Port Authority and item 18 of Part 1 of the schedule in force July 1, 1999, see SI/99-63; subsection 65(3), section 143, subsection 159(1), in section 169, the reference to the Canada Ports Corporation, sections 173 and 177, in section 180, the reference to the Canada Ports Corporation and sections 183, 190 and 197 in force November 1, 2000, see SI/2000-93; in section 162, the reference to the Hamilton Port Authority, in section 184, the reference to the Hamilton Port Authority, in section 194, the reference to the Hamilton Port Authority, sections 198 to 200 and item 3 of Part 1 of the schedule in force May 1, 2001, see SI/2001-55; sections 179, 186, 195, 195.1 and 196 repealed before coming into force, see 2008, c. 20, s. 3; sections 178 and 185 in force February 13, 2014, see SI/2014-12; section 140 repealed before coming into force, see 2008, c. 20, s. 3.]