PART IVArbitrations (continued)
DIVISION IFinal Offer Arbitration (continued)
Marginal note: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.
Marginal note: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.
Marginal note:Summary process
164.1 If the Agency determines that a shipper’s final offer submitted under subsection 161.1(1) involves freight charges in an amount of not more than $2,000,000, adjusted in accordance with section 164.2, and the shipper did not indicate a contrary intention when submitting the offer, sections 163 and 164 do not apply and the arbitration shall proceed as follows:
(a) within seven days after a matter is referred to an arbitrator, the shipper and the carrier may file with the arbitrator a response to the final offer of the other party;
(b) subject to paragraph (c), the arbitrator shall decide the matter on the basis of the final offers and any response filed under paragraph (a); and
(c) if the arbitrator considers it necessary, the arbitrator may invite the parties to make oral representations or may ask the parties to appear before him or her to provide further information.
- 2000, c. 16, s. 15
- 2018, c. 10, s. 47
Marginal note:Triennial adjustment
164.2 (1) The maximum amount of freight charges for the purpose of section 164.1 shall be adjusted every three years, on April 1, in accordance with the formula
[A/B] × C
- is the Consumer Price Index for the calendar year before the year in which the adjustment is made;
- is the Consumer Price Index for 2017; and
- is $2,000,000.
Marginal note:Consumer Price Index
(2) For the purposes of subsection (1),
(a) a reference to the Consumer Price Index for any 12-month period means the average of the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act, for each month in that 12-month period;
(b) if at any time the Consumer Price Index for Canada is adjusted to reflect a new time basis, a corresponding adjustment is to be made in the Consumer Price Index for any 12-month period that is used for the purpose of calculating the maximum amount under subsection (1); and
(c) if at any time the Consumer Price Index for Canada is adjusted to reflect a new content basis, that adjustment does not affect the operation of this section.
Marginal note:Maximum amount to be published
(3) The Agency shall adjust the maximum amount in accordance with subsection (1) and cause it to be published in the Canada Gazette no later than March 31 before the commencement of the three-year period for which the maximum amount applies, and that published amount is conclusive proof of the maximum amount for that three-year period.
- 2018, c. 10, s. 48
Marginal note: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.
Marginal note:Requirements re decision
(2) The decision of the arbitrator shall
(a) be in writing;
(b) unless the parties agree otherwise, be rendered within 60 days or, in the case of an arbitration conducted in accordance with section 164.1, 30 days after the date on which the submission for the final offer arbitration was received by the Agency; and
(c) be rendered so as to apply for the period that is agreed to by the parties or, if no period has been agreed to by the parties, for the period, not exceeding two years, that the shipper requested in its submission.
Marginal note: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.
Marginal note:Reasons not required
(4) No reasons shall be set out in the decision of the arbitrator.
Marginal note:Reasons may be requested
(5) The arbitrator shall, if requested by all of the parties to the arbitration within 30 days or, in the case of an arbitration conducted in accordance with section 164.1, seven days after the decision of the arbitrator, give written reasons for the decision.
Marginal note: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.
Marginal note: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.
- 1996, c. 10, s. 165
- 2000, c. 16, s. 16
- 2018, c. 10, s. 49
Marginal note: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.
Marginal note: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).
Marginal note:Confidentiality 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.
Marginal note: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.
Marginal note: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. The list must state which of the persons have indicated that they have expertise that may assist them in conducting final offer arbitrations and the nature of that expertise.
Marginal note: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.
Marginal note:Publication of list
(3) The Agency shall have the list of persons made known to representatives of shippers and carriers throughout Canada.
- 1996, c. 10, s. 169
- 2000, c. 16, s. 17
169.1 (1) The parties to a final offer arbitration may, by agreement, refer to a mediator, which may be the Agency, a matter that has been submitted for a final offer arbitration under section 161.
Marginal note:Establishment of roster
(2) The Agency may establish a roster of persons, which may include members and staff of the Agency, to act as mediators in any matter referred to it under subsection (1).
Marginal note:Confidentiality of mediation
(3) All matters relating to the mediation shall be kept confidential, unless the parties otherwise agree, and information provided by a party for the purposes of the mediation shall not be used for any other purpose without the consent of that party.
Marginal note:Time limit for completion of mediation
(4) Unless the parties otherwise agree, the mediation shall be completed within 30 days after the matter is referred for mediation.
Marginal note:Effect of mediation on final offer arbitration
(5) The mediation has the effect of
(a) staying the conduct of the final offer arbitration for the period of the mediation; and
(b) extending the time within which the arbitrator must make a decision in the matter of the final offer arbitration by the period of the mediation.
Marginal note:Mediator not to act in other proceedings
(6) The person who acts as mediator may not act in any other proceedings in relation to any matter that was at issue in the mediation.
- 2008, c. 5, s. 7
Marginal note:Joint offer of several shippers
169.2 (1) In the case where more than one shipper is dissatisfied with the rate or rates charged or proposed to be charged by a carrier for the movement of goods, or with any conditions associated with the movement of goods, those shippers may, if the matter cannot be resolved between them and the carrier, submit the matter jointly to the Agency for a final offer arbitration, in which case sections 161 to 169 apply, with any modifications that the circumstances require.
Marginal note:Common matter and application of the offer
(2) A matter submitted jointly to the Agency for a final offer arbitration shall be common to all the shippers and the shippers shall make a joint offer in respect of the matter, the terms of which apply to all of them.
Marginal note:Arbitration precluded in certain cases
(3) The Agency shall not have any matter submitted to it for a final offer arbitration under subsection (1) arbitrated unless the shippers demonstrate, to the satisfaction of the Agency, that an attempt has been made to mediate the matter.
Marginal note:Confidentiality of mediation
(4) All matters relating to a mediation shall be kept confidential, unless the parties otherwise agree, and information provided by a party for the purposes of the mediation shall not be used for any other purpose without the consent of that party.
Marginal note:Mediator not to act in other proceedings
(5) The person who acts as mediator may not act in any other proceedings in relation to any matter that was at issue in the mediation.
Marginal note:Matter submitted by more than one shipper
(6) In the case of a matter that is submitted jointly under subsection (1),
(a) the period referred to in subsection 161.1(1) is 20 days;
(b) the arbitrator may, if he or she considers it necessary, extend any of the periods referred to in subsections 163(3) and (4) and paragraph 164.1(a); and
(c) the decision of the arbitrator shall, despite paragraph 165(2)(b), be rendered within 120 days or, in the case of an arbitration conducted in accordance with section 164.1, 90 days after the day on which the submission for the final offer arbitration is received by the Agency unless the parties agree otherwise.
- 2008, c. 5, s. 7
Marginal note:Time limit — preliminary applications
169.3 (1) Despite sections 162 and 162.1, any application filed with the Agency by a carrier in respect of a matter submitted jointly to the Agency under subsection 169.2(1) shall be filed with the Agency no later than seven days after the day on which the joint submission is made.
Marginal note:Service of copy
(2) A copy of the application shall be served on each of the shippers making the joint submission no later than the day on which the application is required to be filed under subsection (1).
Marginal note:Joint answer
(3) The shippers, no later than five days after the day on which the last shipper was served under subsection (2), shall file with the Agency a joint answer to the application and serve a copy of it on the carrier.
(4) The carrier, no later than two days after the day on which it was served under subsection (3), shall file with the Agency a reply to the joint answer and serve a copy of it on each of the shippers.
Marginal note:Decision of Agency
(5) The Agency shall issue its decision on the application no later than the day on which the matter is required to be referred to arbitration under subsection 162(1).
Marginal note:Deemed conformity
(6) If no application referred to in subsection (1) is filed within the limit set out in that subsection, the matter submitted jointly is deemed to conform to the requirements of subsection 169.2(2).
- 2008, c. 5, s. 7
DIVISION IIArbitration on Level of Services
Marginal note:Submission for arbitration — confidential contract
169.31 (1) If a shipper and a railway company are unable to agree and enter into a contract under subsection 126(1) respecting the manner in which the railway company must fulfil its service obligations under section 113, the shipper may submit any of the following matters, in writing, to the Agency for arbitration:
(a) the operational terms that the railway company must comply with in respect of receiving, loading, carrying, unloading and delivering the traffic, including performance standards and communication protocols;
(b) the operational terms that the railway company must comply with if it fails to comply with an operational term described in paragraph (a);
(c) any operational term that the shipper must comply with that is related to an operational term described in paragraph (a) or (b);
(c.1) any amount to be paid by the company or the shipper in relation to a failure to comply with any operational term described in paragraphs (a) to (c);
(d) any service provided by the railway company incidental to transportation that is customary or usual in connection with the business of a railway company;
(e) the question of whether the railway company may apply a charge with respect to an operational term described in paragraph (a) or (b) or for a service described in paragraph (d); or
(f) the dispute resolution process related to the implementation of the arbitrator’s decision.
(1.1) The Agency may make regulations specifying what constitutes operational terms for the purposes of paragraphs (1)(a) to (c).
Marginal note:Matter excluded from arbitration
(2) The shipper is not entitled to submit to the Agency for arbitration a matter that
(a) is governed by a written agreement, including a confidential contract, to which the shipper and the railway company are parties; or
(b) is the subject of an order, other than an interim order, made under subsection 116(4).
Marginal note:Excluded matter — traffic
(3) The shipper is not entitled to submit to the Agency for arbitration a matter that is in respect of traffic that is the subject of
(a) a confidential contract between the shipper and the railway company that is in force immediately before the day on which this section comes into force;
(b) a tariff, or a contract, referred to in subsection 165(3);
(c) a long-haul interswitching order made under subsection 134(1); or
(d) an arbitrator’s decision made under section 169.37.
(4) For greater certainty, a rate for the movement of the traffic is not to be subject to arbitration.
- 2013, c. 31, s. 11
- 2014, c. 8, s. 8
- 2018, c. 10, ss. 50, 95
- Date modified: