On 24 April 2006, the Hon. Lawrence Cannon, Minister of Transport, Infrastructure and Communities, introduced Bill C-3, An Act respecting international bridges and tunnels and making a consequential amendment to another Act (short title: the International Bridges and Tunnels Act), in the House of Commons. With the exception of several totally new provisions dealing with international bridges crossing the St. Lawrence River and approvals of sales and transfers of ownership or control of international bridges or tunnels, the bill is similar in most aspects to the previously proposed Part V.1 of the Canada Transportation Act that was included in the much broader package of proposed amendments to that Act contained in Bill C‑44(1) in the 1st Session of the 38th Parliament. That bill died on the Order Paper with the dissolution of Parliament. The current bill is a stand-alone piece of legislation.
The construction and alteration of international bridges and tunnels are matters falling within federal legislative competence pursuant to sections 91(29) and 92(10)(a) of the Constitution Act, 1867. Nevertheless, Transport Canada officials point out that few Canadian laws of general application to international bridges and tunnels have been adopted and no clear authority currently exists to regulate matters pertaining to international bridges and tunnels. Such matters include: the approval of the construction or alteration of new and existing bridges or tunnels; the approval of changes in their ownership, operation or control; and issues of maintenance, operation, safety and security. Officials note that there is currently no defined approval process in Canada for the construction of a new international bridge or tunnel or the alteration of an existing one. They point out that many of those bridges and tunnels were originally created by Special Acts of Parliament, with mirror legislation being enacted in the United States. However, they note that the United States has since streamlined its approval process by requiring persons wishing to construct a new international bridge or tunnel or alter an existing one to apply for a Presidential Permit. Bill C-3 proposes that a person wishing to construct a new international bridge or tunnel or alter an existing one must apply for Governor in Council approval, and meet certain guidelines or terms and conditions.
According to Transport Canada officials, there are currently 24 international vehicular bridges and tunnels between Canada and the United States (specifically, the states of Maine, Vermont, New York, Michigan and Minnesota). Of those, 14 are in Ontario, 9 are in New Brunswick and 1 is in Quebec. There are also nine international railway bridges and tunnels, all located in Ontario, with the exception of one in New Brunswick. These bridges and tunnels are owned under various arrangements: 22 of the vehicular bridges and tunnels are publicly owned (7 by a federal authority, 13 by a provincial or municipal authority, 1 by a joint authority and 1 by an American authority), while the remaining 2, and 5 railway bridges and tunnels, are privately owned. The owners are not necessarily the operators.
The highlights of the bill are that it:
Bill C-3 may be cited as the International Bridges and Tunnels Act (clause 1).
Clause 2 contains a number of definitions for purposes of the bill. Included in these are definitions for an “alteration” and an “international bridge or tunnel.” An “alteration” is defined to include a conversion, an extension and a change in use of an international bridge or tunnel but does not include its operation, maintenance and repair. An “international bridge or tunnel” is defined to mean a bridge or tunnel, or any part of it, that connects any place in Canada to any place outside Canada, and includes the approaches and facilities related to the bridge or tunnel. “Minister” is defined to mean the Minister of Transport.
The bill is binding on the federal and provincial Crowns (clause 3).
In the event of an inconsistency or a conflict between the bill or any regulations made under it and any Act listed in the schedule (setting out a list of international bridges and tunnels Acts), the bill and the regulations prevail to the extent of the inconsistency or conflict (clause 4(1)). The bill enables the Governor in Council, on the recommendation of the Minister, to make regulations amending the schedule by adding, changing or deleting the name of an Act (clause 4(2)). Subject to clause 4(4), nothing in the bill or any regulations made under it affects the application of any other federal statute, including any requirement for a person to obtain authorization in respect of an international bridge or tunnel (clause 4(3)).
Clause 4(4) makes provision for international bridges crossing the St. Lawrence River. It stipulates that despite section 13 of the Navigable Waters Protection Act, approval may be given under Part 1 of that Act to the site or plans of an international bridge over the St. Lawrence River. Section 5 of that Act requires approval for the construction of all works or undertakings that affect navigable waters, while section 13 specifically states that no approval of the site or plans of any bridge over the St. Lawrence River shall be given under Part 1 of the Act. Departmental officials point out that the effect of this anomaly is that currently the construction of a bridge over the St. Lawrence River would require a Special Act of Parliament. Clause 4(4) therefore remedies the anomaly and ensures that persons wishing to build or alter an international bridge over the St. Lawrence River must also obtain approval under Part 1 of the Navigable Waters Protection Act.
Clause 5 declares international bridges and tunnels to be works for the general advantage of Canada. This reinforces the federal government’s constitutional jurisdiction over these structures.
In Canada, there is currently no formal process for the approval or construction of a new international bridge or tunnel. Departmental officials point out that, in the past, an international bridge or tunnel was brought into existence by a Special Act of Parliament, with mirror legislation being enacted in the United States. The historical approach of introducing a Special Act of Parliament for each new bridge or tunnel proposal was a lengthy process. Currently, construction or alterations are governed on a case-by-case basis without a formal approach or approval mechanism.
In the United States, the approval process has been streamlined by replacing the requirement for legislation with a Presidential Permit. In Canada, Bill C-3 proposes that authorization from the Governor in Council be obtained in order to construct or alter an international bridge or tunnel.
Clause 7(1) requires the proponent for the construction of an international bridge or tunnel to submit an application to the Minister for approval by the Governor in Council. The applicant must provide the Minister with any document or information that is required under guidelines issued by the Minister, and any other document or information that is required by the Minister after receipt of the application (clause 7(2)). Because the guidelines are not statutory instruments within the meaning of the Statutory Instruments Act (clause 7(3)), they need not be submitted to the publication and registration process foreseen by that Act.
Clause 8(1) authorizes the Governor in Council, on the recommendation of the Minister, to approve such projects under such terms and conditions as the Governor in Council considers appropriate. The Governor in Council may vary or rescind those terms and conditions or impose new terms and conditions (clause 8(2)). Every person who is subject to terms and conditions must comply with them (clause 8(3)).
Clause 9 addresses the situation where construction or alteration of an international bridge or tunnel has commenced without the authorization of the Governor in Council. It allows the Minister to order the stoppage, removal, alteration, destruction, sale or disposal of the bridge or tunnel (clause 9(1)). The costs associated with removal, destruction or disposal may be recovered by the Minister as a debt due to the federal Crown (clause 9(2)).
Clause 10 sets out the offences and punishment for contravention of clauses 6 and 8(3). In addition, where a person is convicted on indictment of an offence under clause 10, the court may order that the international bridge or tunnel, or anything used in its construction or alteration, be forfeited to the federal Crown (clause 11(1)). Other persons claiming an interest in the forfeited property are entitled to apply to a judge of the superior court of the province where the property is situated for an order declaring that the applicant’s right or interest is not affected by the forfeiture (clauses 11(2), (5)). The bill provides for an appeal from such an order or a refusal to make such an order (clause 11(6)).
Clause 12 provides for the possibility of expropriation by the federal Crown under the federal Expropriation Act where a person requires an interest in land for purposes of the construction or alteration of an international bridge or tunnel and has unsuccessfully attempted to purchase the interest in land.
Clause 13 empowers the Minister to order the owner or operator of an international bridge or tunnel to take any action that the Minister considers appropriate to ensure that it is kept in good condition. Clause 14 authorizes the Governor in Council, on the recommendation of the Minister, to make regulations respecting the maintenance and repair of those bridges and tunnels, including regulations respecting any matters enumerated in the provision.
Clause 15(1) authorizes the Governor in Council, on the recommendation of the Minister, to make regulations respecting the operation and use of international bridges and tunnels, including regulations concerning any of the matters enumerated in the provision. The House of Commons Standing Committee on Transport, Infrastructure and Communities removed the previous regulation-making powers (that were contained in then paragraph (b) of clause 15 of the first-reading version of the bill) respecting the tolls, fees and other charges that may be imposed by owners or operators of international bridges or tunnels for their use, to ensure the efficient flow of traffic.
A new clause 15(2), added by the Committee and amended at the report stage in the House, requires that, before recommending that a regulation be made under clause 15(1), the Minister must, if in his or her opinion it is necessary having regard to all the circumstances, consult with the other levels of government that have jurisdiction over any place where an international bridge or tunnel is situated and with any person who, in the opinion of the Minister, has a direct interest in the matter.
In addition, the Committee added new clause 15.1 to allow the Minister, if he or she is of the opinion that a change in the tolls, fees or other charges for the use of an international bridge or tunnel is resulting in adverse effects on the flow of traffic, to, with the approval of the Governor in Council, order the owner or operator of the bridge or tunnel to impose the charges that, in the opinion of the Minister, would not result in adverse effects on the flow of traffic. Before ordering an owner or operator to impose specified tolls, fees or other charges, the Minister must consult with the owner or operator concerning the impact that those charges could have on their financial situation.
Clause 16 empowers the Governor in Council, on the recommendation of the Minister, to make regulations respecting the security and safety of international bridges and tunnels, including regulations respecting any of the matters noted in the provision.
Clause 17 provides authorization for the Minister to make emergency directions in cases of an immediate threat to the security or safety of an international bridge or tunnel. If the Minister is of the opinion that there is such a threat, he or she may direct any person to do, or to refrain from doing, anything that in the opinion of the Minister it is appropriate to do or refrain from doing in order to respond to the threat.
According to clause 18, the Minister may authorize any Transport Canada officer to make, subject to any restrictions or conditions that the Minister may specify, any direction that the Minister may make under clause 17 whenever the officer is of the opinion that there is an immediate threat to the security or safety of an international bridge or tunnel.
An emergency direction comes into force immediately when it is made, but it ceases to have force 30 days after it is made unless the Minister or officer who made it repeals it before the expiry of the 30 days (clause 19). An emergency direction may provide that it applies in lieu of or in addition to any security regulations made under clause 16 (clause 20(1)). In the event of an inconsistency or conflict between a regulation and an emergency direction, the emergency direction prevails to the extent of the inconsistency or conflict (clause 20(2)).
An emergency direction made under clause 17 or 18 is not a statutory instrument within the meaning of the Statutory Instruments Act (clause 21) and therefore is not subject to the application of that Act.
Clause 22 sets out the offences and punishment for contravening a security regulation made under clause 16 or an emergency direction made under clause 17 or 18.
Transport Canada officials point out that the existing international bridges and tunnels are owned in a variety of manners: some by the federal government (through Crown corporations or binational authorities), some provincially, some municipally and some privately. They note that the degree of oversight the federal government has in the case of sales and transfers of international crossings is limited. Their concern is that, considering the importance of these structures to transportation, international trade, safety and security, this lack of monitoring could lead to changes in ownership, operation or control inconsistent with the public interest.
Accordingly, Bill C-3 proposes an approval process similar to that set out in the bill for the construction of new bridges and tunnels, or alterations to existing ones, for all changes in ownership, operation or control of international bridges or tunnels. Bill C-3’s predecessor, i.e., the portion of Bill C-44 (proposed new Part V.1 of the Canada Transportation Act pertaining to international bridges and tunnels) in the 38th Parliament, did not contain equivalent provisions requiring government approval of transactions affecting the ownership, operation or control of international bridges or tunnels.
Clause 23(1) prohibits a person, without the approval of the Governor in Council, from purchasing or otherwise acquiring an interest in, operating, or acquiring control of an entity that owns or operates an international bridge or tunnel. Clause 23(2) sets out what constitutes control of an entity that owns or operates an international bridge or tunnel for purposes of clauses 23, 26 and 28. Clause 2 defines an “entity” for purposes of the bill to mean a corporation, partnership, trust, joint venture or unincorporated association or organization.
Approval for anything referred to in clause 23(1) may be obtained only by submitting an application to the Minister for approval by the Governor in Council (clause 24(1)). A person who submits an application must provide the Minister with any document or information required under guidelines issued by the Minister, and any document or information that is required by the Minister after receipt of the application (clause 24(2)). Because the above guidelines are not statutory instruments within the meaning of the Statutory Instruments Act (clause 24(3)), they will not have to be submitted to the publication and registration process foreseen by that Act.
The bill empowers the Governor in Council, on the recommendation of the Minister, to approve an application referred to in clause 24 subject to any terms and conditions that the Governor in Council considers appropriate (clause 25(1)). The Governor in Council may vary or rescind the terms and conditions or impose new ones (clause 25(2)). Every person who is subject to terms and conditions must comply with them (clause 25(3)).
The Minister may, in accordance with any terms and conditions that he or she considers appropriate, order a person to:
In the event that a Ministerial Order is made pursuant to clause 26(1), the Minister may appoint a person to manage and operate the bridge or tunnel on an interim basis and in accordance with any terms or conditions that he or she may specify (clause 26(2)).
Clause 27 establishes an offence and punishment for contravention of clauses 23 or 25(3) and for failure to comply with a Ministerial Order under clause 26.
Clause 28 authorizes the Governor in Council, on the recommendation of the Minister, to make regulations requiring any person or class of persons to provide to the Minister any information related to the ownership of international bridges and tunnels and the control of the entity that owns or operates an international bridge or tunnel.
Clause 29(1) authorizes the Governor in Council, on the recommendation of the Minister, to issue letters patent of incorporation for the establishment of a corporation for the purpose of constructing or operating an international bridge or tunnel. Clause 29(2) specifies matters that may be included in the letters patent. Clause 29(3) provides for the issuance of supplementary letters patent (to amend the letters patent), and clause 29(4) provides for the possible revocation of letters patent or supplementary letters patent. According to clause 29(5), letters patent, supplementary letters patent and a notice of revocation are not considered to be statutory instruments within the meaning of the Statutory Instruments Act, but must be published in the Canada Gazette and are valid with respect to third parties as of the date of publication.
Other relevant provisions concerning corporations include those respecting: the Governor in Council’s regulation-making powers concerning matters to be included in their letters patent (clause 31(1)); their capacity and powers of a natural person (clause 32(1)); their authority to charge tolls, fees or other charges for the use of an international bridge or tunnel (clause 33); the power of their directors to manage their activities and affairs (clause 34); the duty of care required of their directors and officers in exercising their duties (clause 35); and the normal power of the directors to make, amend or repeal by-laws regulating the affairs of the corporation (clause 36).
Clause 37 provides that for purposes of section 90 (concerning transactions requiring parliamentary authorization) in Part V (entitled “Crown corporations”) of the Financial Administration Act, the federal Crown, or “parent Crown corporation” within the meaning of section 83 of that Act, is authorized to acquire, hold, dispose of and otherwise deal with shares of a corporation that owns or operates an international bridge or tunnel. This clarifies that the federal government or a federal Crown corporation may own shares of a corporation that owns or operates an international bridge or tunnel. Transport Canada officials point out that without this specification, ownership of such shares would be prohibited by the Financial Administration Act.
Clause 38(1) makes it an offence for a person to knowingly, in connection with any matter under the bill, make a false or misleading statement or provide false or misleading information to any of the following: the Minister; any person acting on the Minister’s behalf; or a person designated by the Minister under section 39(1). Similarly, clause 38(2) makes it an offence for a person to knowingly obstruct or hinder a person referred to in clause 38(1) who is engaged in carrying out functions under the bill.
Clause 39 sets out enforcement powers for the purpose of ensuring compliance with the bill and any regulation, order or directive under the bill, for example: the power of the Minister (or a person designated by the Minister) to enter a place for the purpose of making an inspection; the power to remove things for examination and to seize things for evidence; the authority of a justice of the peace to issue warrants; the use of force in executing warrants; etc.
The owner or person who is in possession or control of a place that is entered or inspected under clause 39, and every person found in the place, must provide the Minister (or a person designated by the Minister) with: all reasonable assistance to enable him or her to carry out the inspection and exercise any power conferred on him or her by clause 39(1); and any information relevant to the administration of the bill or the regulations, orders, directions or notices made under the bill that he or she may reasonably require (clause 40).
Clause 41(1) provides that if, on the Minister’s application, it appears to a court of competent jurisdiction that a person has done, is about to do, or is likely to do, any act or thing constituting or directed toward the commission of an offence under the bill, the court may issue an injunction ordering the person named in the application: to refrain from doing any act or thing that, in the opinion of the court, may constitute or be directed toward the commission of an offence; or to do any act or thing that, in the opinion of the court, may prevent the commission of the offence.
No injunction may be issued under clause 41(1) unless 48 hours’ notice is given to the party or parties named in the application or the urgency of the situation is such that service of notice would not be in the public interest (clause 41(2)).
Clause 42 sets out an offence and punishment in respect of a person who contravenes a provision of the bill or any regulation or order made under it for which no other offence is specified in the bill.
Clause 43(a) authorizes the Minister to designate, by regulation, provisions of the bill or regulations made under the bill, orders made under clauses 9, 13, 15.1 or 26, or emergency directions made under clauses 17 or 18 of the bill, the contravention of which may be proceeded with as a violation in accordance with clauses 45 to 55. Clause 43(b) also empowers the Minister to prescribe by regulation the maximum amount payable for each violation, but not to exceed $5,000 in the case of an individual and $25,000 in the case of a corporation.
The Minister may establish the form and content of notices of violation (clause 44).
According to clause 45(1), a person who contravenes a provision or requirement designated under clause 43(a) commits a violation and is liable to a penalty not exceeding the maximum prescribed under clause 43(b). A violation that is committed or continues on more than one day constitutes a separate violation for each day on which it is committed or continued (clause 45(2)). In the case of an act or omission that can be proceeded with as either a violation or an offence, proceeding with it as a violation precludes proceeding with it as an offence and vice versa (clause 45(3)). Because a violation is not an offence, section 126 of the Criminal Code (offence of disobeying a federal statute without lawful excuse) and the applicable punishment do not apply (clause 45(4)).
If a person designated by the Minister under clause 39(1) believes on reasonable grounds that a person has committed a violation, the designated person may issue and serve on the person a notice of violation that names the person, identifies the violation, sets out the penalty for the violation, and provides particulars concerning the time for, and manner of, paying the penalty (clause 46).
For the purposes of clauses 48 to 54, “Tribunal” means the Transportation Appeal Tribunal of Canada established by section 2(1) of the Transportation Appeal Tribunal of Canada Act (clause 47).
A person who has been served with a notice of violation has the option of either paying the amount of the penalty specified in the notice or filing with the Tribunal a written request for a review of the facts of the alleged contravention or of the amount of the penalty (clause 48).
Payment by a person served with a notice of violation of the amount specified in the notice precludes further proceedings against that person in respect of the contravention of the designated provision (clause 49).
A person who is served with a notice of violation and who wishes to have the facts of the alleged contravention or the amount of the penalty reviewed must, on or before the date specified in the notice or within any further time that the tribunal on application may allow, file a written request for a review with the tribunal at the address set out in the notice (clause 50(1)). On receipt of that request, the Tribunal must appoint a time and place for the review and notify the Minister and the person who filed the request accordingly (clause 50(2)). The member of the Tribunal assigned to conduct the review must provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations (clause 50(3)). The onus is on the Minister to establish that a person has contravened a designated provision (clause 50(4)). A person who is alleged to have contravened a designated provision is not required, and cannot be compelled, to give any evidence or testimony in the matter (clause 50(5)).
If a person fails to pay the amount of the penalty specified in a notice of violation within the time specified in the notice and does not file a request for a review, the person is deemed to have committed the contravention alleged in the notice. In that case, the Minister may obtain from the tribunal a certificate indicating the amount of the penalty specified in the notice (clause 51).
If, at the conclusion of the review, the Tribunal member who conducts the review determines that the person has not contravened the designated provision that he or she is alleged to have contravened, the Tribunal member must without delay inform both the person and the Minister of the determination. In that case, subject to clause 53, no further proceedings under the bill can be taken against the person in respect of the alleged contravention (clause 52(a)).
Alternatively, if, at the conclusion of the review, the Tribunal member determines that the person has contravened the designated provision that he or she is alleged to have contravened, the Tribunal member must without delay inform the person and the Minister of the determination and, subject to regulations made under clause 43(b), of the amount determined by the Tribunal member to be payable by the person in respect of the contravention. In that case, if the amount is not paid to the Tribunal within the time allowed by the Tribunal member, the latter must issue to the Minister a certificate in the form that may be established by the Governor in Council, setting out the amount required to be paid by the person (clause 52(b)).
The Minister or a person affected by a determination by a Tribunal member under clause 52 may, within 30 days after the determination, appeal it to the Tribunal (clause 53(1)). A party that does not appear at a review is not entitled to appeal a determination, unless they establish that there was sufficient evidence to justify their absence (clause 53(2)). The appeal panel of the Tribunal may either dismiss it or allow it and, in the latter case, may substitute its decision for the determination appealed against (clause 53(3)). If the appeal panel finds that a person has contravened the designated provision, the panel must without delay inform the person of its finding and, subject to regulations made under clause 43(b), of the amount determined by the panel to be paid by the person in respect of the contravention. If the amount is not paid to the Tribunal within the time allowed by the Tribunal, the Tribunal must issue to the Minister a certificate in the form that may be established by the Governor in Council setting out the amount required to be paid by the person (clause 53(4)).
If any of the various time limits (i.e., for the payment of an amount determined in a notice, for the request for a review, or for an appeal) have expired or an appeal has been disposed of, then, on production in any superior court, a certificate under clause 51, 52(b), or 53(4) shall be registered in the court (clause 54(1)). Once registered, a certificate has the same force and effect, and proceedings may be taken in respect of it, as if it were a judgment in that court obtained by the federal Crown against the person named in the certificate for a debt of the amount set out in the certificate (clause 54(1)). Clause 54(2) allows for reasonable costs and charges related to the registration of the certificate to be recovered in the same manner as if they had been certified and the certificate had been registered under clause 54(1). Amounts received by the Minister or the Tribunal under clause 54 are deemed to be public monies within the meaning of the Financial Administration Act (clause 54(3)).
Proceedings in respect of a violation may be instituted no later than 12 months after the time when the subject-matter of the proceedings arose (clause 55).
Clause 56(1) requires the Minister to complete a review of the provisions and operation of the bill during the fifth year after the clause comes into force. The Minister must cause a report of the results of the review to be laid before each House of Parliament in any of the first 15 days on which that House is sitting after the report has been completed (clause 56(2)).
Clause 57 provides that the bill applies in respect of a proposal for the construction or alteration of an international bridge or tunnel that has been submitted to any federal government department, agency or regulatory authority before the coming into force of the clause.
As previously noted, clause 23(1) prohibits a person, among other things, from operating an international bridge or tunnel without the Governor in Council’s approval. Notwithstanding that provision, clause 58 stipulates that a person who operated such a bridge or tunnel immediately before that clause comes into force is not required to obtain the approval of the Governor in Council to continue to operate the bridge or tunnel on or after the day the clause comes into force.
Clause 59 makes a consequential amendment to section 2(3) of the Transportation Appeal Tribunal of Canada Act in order to give the Tribunal jurisdiction in connection with administrative monetary penalties provided for in clauses 43 to 55 of Bill C-3.
The provisions of the bill come into force on a day or days to be fixed by order of the Governor in Council.
As previously noted, Bill C-3 is a stand-alone bill which, with the exception of several new provisions, is similar in most aspects to its predecessor, the previously proposed Part V.1 (concerning international bridges and tunnels) of the Canada Transportation Act in Bill C‑44 in the 1st Session of the 38th Parliament. Proposed Part V.1 comprised only a small part of that bill’s proposed amendments to the Canada Transportation Act. Transport Canada officials point out that extensive consultations with stakeholders took place regarding Bill C-44. They further note that, in 2005, international bridge and tunnel stakeholders were consulted in connection with that bill and it was felt that, in general, there was support for it. However, they indicate that those same stakeholders have not been consulted with respect to the newly added provisions concerning international bridges and tunnels in Bill C-3. They are aware that the proposed provisions dealing with governmental approval of sales and transfers affecting ownership or control may cause concern to stakeholders. They expect, however, that these stakeholders will be active participants in the regulations consultation process, and that their concerns will be dealt with at that time.
To date, it would appear that there have been no comments regarding the bill in the media.
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