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Bill C-101

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PART IV

FINAL OFFER ARBITRATION

Application

Application of sections 161 to 169

159. (1) Sections 161 to 169 apply only in respect of matters arising between shippers and carriers that involve

    (a) the carriage of goods by air to which Part II applies, other than their carriage internationally;

    (b) the carriage of goods by railways to which this Act applies, other than the carriage of goods in trailers or containers on flat cars unless the containers arrive by water at a port in Canada, served by only one railway company, for further movement by rail or arrive by rail at such a port in Canada for further movement by water; or

    (c) the carriage by water, for hire or reward, of goods required for the maintenance or development of a municipality or any permanent settlement for northern marine resupply purposes, other than goods required in relation to national defence or in relation to the exploration for or the development, extraction or processing of oil, gas or any mineral.

Scope of paragraph (1)(c)

(2) Paragraph (1)(c) applies only to resupply services on

    (a) the rivers, streams, lakes and other waters within the watershed of the Mackenzie River;

    (b) the territorial sea and internal waters of Canada that are adjacent to the coast of the mainland and islands of the Canadian Arctic and situated within the area bounded by the meridians of longitude 95o West and 141o West and the parallels of latitude 66o 00-30È North and 74o 00-20È North; and

    (c) the internal waters of Canada comprised in Spence Bay and Shepherd Bay and situated east of the meridian of longitude 95o West.

Application

(3) Paragraph (1)(c) applies only if

    (a) the total register tonnage of all ships used to provide the resupply service exceeds fifty register tons; or

    (b) the resupply service originates from a point situated on the waters described in subsection (2).

Rail passenger services

160. Sections 161 to 169 also apply, with such modifications as the circumstances require, in respect of the rates charged or proposed to be charged by, or any of the conditions associated with the provision of services by, a railway company to

    (a) a commuter rail authority designated by the government of a province; or

    (b) a railway company engaged in passenger rail services.

Final Offer Arbitration

Submission for final offer arbitration

161. (1) A shipper who is dissatisfied with the rate or rates charged or proposed to be charged by a carrier for the movement of goods, or with any of the conditions associated with the movement of goods, may, where the matter cannot be resolved between the shipper and the carrier, submit the matter in writing to the Agency for a final offer arbitration.

Contents of submission

(2) A copy of a submission under subsection (1) shall be served on the carrier by the shipper and the submission shall contain

    (a) the final offer of the shipper to the carrier in the matter;

    (b) the last offer received by the shipper from the carrier in the matter;

    (c) an undertaking by the shipper to ship the goods to which the arbitration relates in accordance with the decision of the arbitrator;

    (d) an undertaking by the shipper to the Agency whereby the shipper agrees to pay to the arbitrator the fee for which the shipper is liable under section 166 as a party to the arbitration; and

    (e) the name of the arbitrator, if any, that the shipper and the carrier have agreed should conduct the arbitration.

Arbitration precluded in certain cases

(3) The Agency shall not have any matter submitted to it by a shipper under subsection (1) arbitrated if the shipper has not, at least five days before making the submission, served on the carrier a written notice indicating that the shipper intends to submit the matter to the Agency for a final offer arbitration.

Final offer arbitration not a proceeding

(4) A final offer arbitration is not a proceeding before the Agency.

Arbitration

162. (1) On the submission of a matter to the Agency for a final offer arbitration, the Agency shall refer the matter for the arbitration

    (a) to the chosen arbitrator, if any, referred to in paragraph 161(2)(e), if that arbitrator is available to conduct the arbitration; or

    (b) where no arbitrator is chosen as contemplated by paragraph (a) or the arbitrator chosen is, in the opinion of the Agency, unavailable to conduct the arbitration, to any other arbitrator, chosen by the Agency from the list of arbitrators referred to in section 169, that the Agency determines is appropriate and available to conduct the arbitration.

Assistance by Agency

(2) The Agency may, at the request of the arbitrator, provide administrative, technical and legal assistance to the arbitrator on a cost recovery basis.

Procedure

163. (1) In the absence of an agreement by the arbitrator and the parties as to the procedure to be followed, a final offer arbitration shall be governed by the rules of procedure made by the Agency.

Procedure generally

(2) The arbitrator shall conduct the arbitration proceedings as expeditiously as possible and, subject to the procedure referred to in subsection (1), in the manner the arbitrator considers appropriate having regard to the circumstances of the matter.

Exchange of information

(3) Within fifteen days after the Agency refers a matter for arbitration, the parties shall exchange the information that they intend to submit to the arbitrator in support of their final offers.

Interrogatorie s

(4) Within seven days after receipt of the information referred to in subsection (3), each party may direct interrogatories to the other, which shall be answered within fifteen days after their receipt.

Withholding of information

(5) If a party unreasonably withholds information that the arbitrator subsequently deems to be relevant, that withholding shall be taken into account by the arbitrator in making a decision.

Arbitration information

164. (1) The arbitrator shall, in conducting a final offer arbitration between a shipper and a carrier, have regard to the information provided to the arbitrator by the parties in support of their final offers and, unless the parties agree to limit the amount of information to be provided, to any additional information that is provided by the parties at the arbitrator's request.

Arbitration considerations

(2) Unless the parties agree otherwise, in rendering a decision the arbitrator shall have regard to whether there is available to the shipper an alternative, effective, adequate and competitive means of transporting the goods to which the matter relates and to all considerations that appear to the arbitrator to be relevant to the matter.

Decision of arbitrator

165. (1) The decision of the arbitrator in conducting a final offer arbitration shall be the selection by the arbitrator of the final offer of either the shipper or the carrier and, for the purpose of this section,

    (a) the final offer of the shipper shall be the shipper's final offer set out in the submission to the Agency under subsection 161(1); and

    (b) the final offer of the carrier shall be the last offer received by the shipper from the carrier as set out in the submission to the Agency under subsection 161(1) or any other offer that the carrier, within ten days after the service referred to in subsection 161(2), specifies in writing to the shipper and to the Agency as the carrier's final offer.

Requirements re decision

(2) The decision of the arbitrator shall

    (a) be in writing;

    (b) unless the parties agree otherwise, be rendered within sixty days after the date on which the submission for the final offer arbitration was received by the Agency from the shipper; and

    (c) unless the parties agree otherwise, be rendered so as to apply to the parties for a period of one year or any lesser period that may be appropriate, having regard to the negotiations between the parties that preceded the arbitration.

Incorporation in tariff

(3) The carrier shall, without delay after the arbitrator's decision, set out the rate or rates or the conditions associated with the movement of goods that have been selected by the arbitrator in a tariff of the carrier, unless, where the carrier is entitled to keep the rate or rates or conditions confidential, the parties to the arbitration agree to include the rate or rates or conditions in a contract that the parties agree to keep confidential.

Reasons not required

(4) No reasons shall be set out in the decision of the arbitrator.

Reasons may be requested

(5) The arbitrator shall, if requested by all of the parties to the arbitration within thirty days after the decision of the arbitrator, give reasons in writing for the decision.

Application of decision

(6) Except where both parties agree otherwise,

    (a) the decision of the arbitrator on a final offer arbitration shall be final and binding and be applicable to the parties as of the date on which the submission for the arbitration was received by the Agency from the shipper, and is enforceable as if it were an order of the Agency; and

    (b) the arbitrator shall direct in the decision that interest at a reasonable rate specified by the arbitrator shall be paid to one of the parties by the other on moneys that, as a result of the application of paragraph (a), are owed by a party for the period between the date referred to in that paragraph and the date of the payment.

Payment by party

(7) Moneys and interest referred to in paragraph (6)(b) that are owed by a party pursuant to a decision of the arbitrator shall be paid without delay to the other party.

Arbitration fees

166. (1) The Agency may fix the fee to be paid to an arbitrator for the costs of, and the services provided by, the arbitrator in final offer arbitration proceedings.

Payment of fees and costs

(2) The shipper and the carrier shall share equally, whether or not the proceedings are terminated pursuant to section 168, in the payment of the fee fixed under subsection (1) and in the cost

    (a) borne by the Agency for administrative, technical and legal services provided to the arbitrator pursuant to subsection 162(2); and

    (b) of the preparation of any reasons requested pursuant to subsection 165(5).

Confidentialit y of information

167. Where the Agency is advised that a party to a final offer arbitration wishes to keep matters relating to the arbitration confidential,

    (a) the Agency and the arbitrator shall take all reasonably necessary measures to ensure that the matters are not disclosed by the Agency or the arbitrator or during the arbitration proceedings to any person other than the parties; and

    (b) no reasons for the decision given pursuant to subsection 165(5) shall contain those matters or any information included in a contract that the parties agreed to keep confidential.

Termination of proceedings

168. Where, before the arbitrator renders a decision on a final offer arbitration, the parties advise the Agency or the arbitrator that they agree that the matter being arbitrated should be withdrawn from arbitration, the arbitration proceedings in respect of the matter shall be immediately terminated.

List of arbitrators

169. (1) The Agency shall, from time to time, in consultation with representatives of shippers and carriers, establish a list of persons who agree to act as arbitrators in final offer arbitrations.

List per mode

(2) A separate list of persons may be established under subsection (1) in respect of each or any mode of transportation, as the Agency considers appropriate.

Publication of list

(3) The Agency shall have the list of persons made known to representatives of shippers and carriers throughout Canada.

PART V

TRANSPORTATION OF PERSONS WITH DISABILITIES

Regulations

170. (1) The Agency may make regulations for the purpose of eliminating undue obstacles in the transportation network under the legislative authority of Parliament to the mobility of persons with disabilities, including regulations respecting

    (a) the design, construction or modification of, and the posting of signs on, in or around, means of transportation and related facilities and premises, including equipment used in them;

    (b) the training of personnel employed at or in those facilities or premises or by carriers;

    (c) tariffs, rates, fares, charges and terms and conditions of carriage applicable in respect of the transportation of persons with disabilities or incidental services; and

    (d) the communication of information to persons with disabilities.

Incorporation by reference

(2) Regulations made under subsection (1) incorporating standards or enactments by reference may incorporate them as amended from time to time.

Exemption

(3) The Agency may, with the approval of the Governor in Council, make orders exempting specified persons, means of transportation, services or related facilities and premises from the application of regulations made under subsection (1).

Co-ordination

171. The Agency and the Canadian Human Rights Commission shall co-ordinate their activities in relation to the transportation of persons with disabilities in order to foster complementary policies and practices and to avoid jurisdictional conflicts.

Inquiry re obstacles to persons with disabilities

172. (1) The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

Compliance with regulations

(2) Where the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.

Remedies

(3) On determining that there is an undue obstacle to the mobility of persons with disabilities, the Agency may require the taking of appropriate corrective measures or direct that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle, or both.

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