BILL 89 – 2003
BRITISH COLUMBIA RAILWAY (REVITALIZATION) AMENDMENT ACT, 2003

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

1 Section 1 of the British Columbia Railway Act, R.S.B.C. 1996, c. 36, is amended by adding the following definitions:

"BC Rail Partnership" means that general partnership, known as BC Rail Partnership, among 2 or more of the company, BC Rail Ltd., BCR Properties Ltd., and any other subsidiary;

"local government" has the same meaning as in the Local Government Act, and includes the City of Vancouver;

"minister", except in sections 29 (b), 48 and 50, means the Minister of Transportation, and, in sections 48 and 50, includes that minister;

"Port Subdivision Subsidiary" means the BCR Port Subdivision Ltd., a company incorporated under the Company Act;

"rail service" means the transportation by rail of one or both of goods and passengers;

"railbed assets", in relation to the line or lines of the railway referred to in section 8 (1), includes the following:

(a) the railbed beneath the railway track, including the basic grading and earthworks below the track ballast;

(b) the railway track, including, without limitation, all rail, ties, turnouts, associated hardware and track ballast;

(c) all works of infrastructure under the control or ownership of the BC Rail Partnership, a subsidiary of the company or the revitalization rail operator that support the safety, security and operating integrity of the railway track, including, without limitation, cuttings, embankments, drainage works, bridges, tunnels, culverts, retaining walls, works of stabilization, signals and detection devices and at-grade road crossings and signals;

"railway property" means any real property or any right, title or interest in or to real property that is designated as a railway property in a regulation referred to in section 45 (1) or (2);

"revitalization agreement" means any agreement referred to in section 46 by which the company makes a grant or assignment under section 46 (1);

"revitalization rail operator" means any person to whom a grant or assignment is made under section 46 (1);

"revitalization rail services" means the rail services that immediately before the coming into force of this Act were or could have been provided on all or any part of the line or lines of the railway referred to in section 8 (1);

"subdividable properties" means those railway properties that are designated as subdividable properties in a regulation referred to in section 45 (1) or (2).

2 The following section is added:

Port Subdivision Subsidiary

5.1 (1) In this section:

"appropriate bargaining unit", "collective agreement", "council of trade unions" and "trade union" have the same meaning as in the Labour Relations Code;

"BCR collective agreement" means a collective agreement between BC Rail Ltd. and a trade union, or a council of trade unions, for an appropriate bargaining unit.

(2) A BCR collective agreement does not bind, and section 35 of the Labour Relations Code does not apply to, the Port Subdivision Subsidiary.

3 Section 8 is amended

(a) in subsection (2) by striking out "none of the company, any subsidiary or any person under the control of the company or of any subsidiary is required to provide passenger service over all or any part of its line or lines of railway in British Columbia." and substituting "the company, any subsidiary, BC Rail Partnership or any person under the control of the company, any subsidiary or BC Rail Partnership may, but need not, provide rail service over all or any part of the lines of railway referred to in subsection (1).", and

(b) by adding the following subsection:

(3) Nothing in subsection (2) removes from a revitalization rail operator the obligation to provide rail service in accordance with the revitalization agreement.

4 Section 20 is repealed.

5 Section 29 is repealed and the following substituted:

Government ownership of share capital

29 The shares of the company

(a) must be registered in the name of the Minister of Finance,

(b) must be held by that minister on behalf of the government, and

(c) must not be sold or otherwise disposed of.

6 The following sections are added:

Transfer to the company

45 (1) For the purposes of this section, the Lieutenant Governor in Council may, by regulation,

(a) designate, as railway property,

(i) any real property owned or held by the government, the company, any subsidiary or BC Rail Partnership, and

(ii) any right, title or interest owned or held by the government, the company, any subsidiary or BC Rail Partnership in or to any real property,

if the Lieutenant Governor in Council considers that the real property or the right, title or interest relates to the provision of revitalization rail services, and

(b) designate as subdividable property any railway property that the Lieutenant Governor in Council considers includes more real property than is necessary for the provision of revitalization rail services.

(2) Nothing in this section prevents the Lieutenant Governor in Council from amending a regulation referred to in subsection (1) and, without limitation, the Lieutenant Governor in Council may, by regulation,

(a) correct or update any legal description or other description of

(i) any real property that is designated as railway property in the regulation,

(ii) any real property in or to which a right, title or interest is designated as railway property in the regulation, and

(iii) any right, title or interest that is designated as railway property in the regulation,

(b) designate, as railway property,

(i) any other real property owned by the government, the company, any subsidiary or BC Rail Partnership, and

(ii) any other right, title or interest owned or held by the government, the company, any subsidiary or BC Rail Partnership in or to any real property,

if the Lieutenant Governor in Council considers that the real property or the right, title or interest relates to the provision of revitalization rail services, and

(c) designate as subdividable properties any railway properties, included in the regulation under subsection (1) or under paragraph (b) of this subsection, that the Lieutenant Governor in Council considers includes more real property than is necessary for the provision of revitalization rail services.

(3) Regulations referred to in subsection (2) may be made retroactive to the date on which this section comes into force or any later date that the Lieutenant Governor in Council may determine, and a regulation made retroactive is deemed to have come into force on the date specified in the regulation.

(4) Despite any enactment or law to the contrary, on the coming into force of a regulation referred to in subsection (1) or (2),

(a) real property that is designated in the regulation as railway property is, to the extent that the real property is not already owned by the company, transferred to and vested in the company subject to

(i) all liens, charges, encumbrances and tenancies that have been

(A) registered against title,

(B) assumed in writing by the company or, if a subsidiary or BC Rail Partnership held title to the real property immediately before the company, that subsidiary or BC Rail Partnership, or

(C) established by a written record to which the company or, if a subsidiary or BC Rail Partnership held title to the real property immediately before the company, that subsidiary or BC Rail Partnership, is a party,

(ii) the subsisting conditions, provisos, restrictions, exceptions and reservations, including royalties, contained in the original grant or contained in any other grant or disposition from the Crown, and

(iii) all exceptions and reservations set out in section 50 (1) of the Land Act, and

(b) the rights, titles and interests in or to real property that are designated in the regulation as railway properties are, to the extent that they are not already owned by the company, transferred to and vested in the company subject to all liens, charges, encumbrances and tenancies registered against the rights, titles and interests.

(5) If real property or any right, title or interest in or to real property is transferred to and vested in the company under subsection (4) (a) or (b), the company may provide to the registrar of the applicable land title office a transfer in the prescribed form.

(6) On receipt of a transfer provided under subsection (5), the registrar must,

(a) if and to the extent that the transfer provides for a transfer of a fee simple interest in real property,

(i) register an indefeasible title to that real property, and

(ii) cancel any existing title to that real property, and

(b) if and to the extent that the transfer provides for a transfer of any other right, title or interest in or to real property, effect registration of the right, title or interest in or to real property in the name of the company.

(7) The registrar of a land title office to whom a transfer is provided under subsection (5) must effect the registration contemplated by subsection (6) (b) whether or not

(a) the terms of the right, title or interest prohibit the transfer without the consent of a specified person or of a person who is a member of a specified class of persons, and

(b) any consent required under paragraph (a) has been obtained.

(8) Despite any provision to the contrary in a security agreement or other agreement or record, a transfer of a railway property to the company effected under subsection (4) does not constitute a breach or contravention of, or an event of default under, the security agreement or other agreement or record and, without limiting this or subsection (9), does not entitle any person having an interest in the railway property under any security agreement or other agreement or record to claim any damages or compensation or to terminate the security agreement or other agreement or record.

(9) No compensation or payment of any kind is payable by the government, the company, any subsidiary or BC Rail Partnership and proceedings must not be commenced or maintained to claim compensation from the government, the company, any subsidiary or BC Rail Partnership or to obtain a declaration that compensation is payable by the government, the company, any subsidiary or BC Rail Partnership, whether for expropriation or for extinguishment or impairment of rights, titles or interests or otherwise, in respect of the effect of any or all of this section, sections 46 to 53 and any regulation referred to in this section or sections 46 to 53 on

(a) any of the railway properties,

(b) any right, title or interest of any person or other entity in or to any of the railway properties,

(c) any other real property that is, or any rights, titles or interests in or to real property that are, in any way affected by any or all of this section, sections 46 to 53 and any regulation referred to in this section or sections 46 to 53, including, without limitation, for any loss of value of the real property or of the right, title or interest, for any injurious affection or for any business loss, and

(d) any claims, proceedings or demands under any enactment or at law.

(10) On and after any transfer referred to in subsection (4), all uses to which the transferred railway property was being or could be put immediately before the transfer, all modifications that had, before the transfer, been made to the railway property and all things and other improvements of any type that were, immediately before the transfer, located on, in, under or over the railway property, are deemed to be wholly consistent with the local government requirements that would otherwise apply to the railway property, including, without limitation, all local government zoning bylaws.

Use of railway properties

46 (1) Subject to section 52 (1) but despite any enactment or law to the contrary and despite any lien, charge, encumbrance, tenancy, condition, proviso, restriction, exception, reservation or right referred to in section 45 (4), after any transfer referred to in section 45 (4), the company may grant or assign one or more leases, licences, statutory rights of way or other interests in any or all of the railway properties on any terms and conditions and for any purposes it considers appropriate.

(2) Despite any provision to the contrary in a security agreement or other agreement or record, a grant or assignment of an interest referred to in subsection (1) in a railway property does not constitute a breach or contravention of, or a default under, the security agreement or other agreement or record and, without limiting this or section 45 (9), does not entitle any person having an interest in the railway property under any security agreement or other agreement or record to claim any damages or compensation or to terminate the security agreement or other agreement or record.

Preserving the rail corridor

47 (1) In this section:

"rail corridor", in relation to a subdividable property, means the portion of that subdividable property that is not remainder property;

"remainder property", in relation to a subdividable property, means the portion of that subdividable property that the Lieutenant Governor in Council considers is not required for revitalization rail services.

(2) The company may create a reference plan for each subdividable property showing the rail corridor on that subdividable property and may submit that reference plan to the Lieutenant Governor in Council for approval.

(3) The Lieutenant Governor in Council may, by order, approve any reference plan submitted under subsection (2), whether or not that reference plan

(a) has been approved by an approving officer, or

(b) complies with any section of the Land Title Act or its regulations, including, without limitation, section 75 of that Act.

(4) After a reference plan referred to in subsection (2) has been approved under subsection (3), the company may submit the approved plan to the registrar of the applicable land title office along with a certified copy of the approving order of the Lieutenant Governor in Council, and the registrar must register that reference plan, even though

(a) that reference plan has not been approved by an approving officer,

(b) that reference plan does not comply with any section of the Land Title Act or its regulations, including, without limitation, section 75 of that Act and any access requirements imposed by that Act or those regulations,

(c) any person holding a charge against the subdividable property has not consented to the registration of the reference plan, or

(d) the Land Title Act or any of its regulations provides otherwise.

(5) Despite the Land Title Act, on registration of a reference plan under subsection (4),

(a) the subdividable property is subdivided into the rail corridor and the remainder property,

(b) the registrar must, in accordance with the reference plan, create one or more titles for the rail corridor and one title for the remainder property,

(c) the rail corridor remains as railway property and remains subject to any grant made in respect of the subdividable property under section 46, and

(d) the remainder property ceases to be railway property and ceases to be subject to any grant made in respect of the subdividable property under section 46.

(6) Despite any provision to the contrary in a security agreement or other agreement or record, neither the making of an order under subsection (3) nor the subdivision of a subdividable property under subsection (5) constitutes a breach or contravention of, or a default under, the security agreement or other agreement or record, including, without limitation, any revitalization agreement and, without limiting this or section 45 (9), does not entitle any person having an interest in the subdividable property under any security agreement or other agreement or record to claim any damages or compensation or to terminate the security agreement or other agreement or record.

(7) On and after any subdivision referred to in subsection (5), all uses to which any or all of the subdividable property was being or could be put immediately before the subdivision, all modifications that had, before the subdivision, been made to the subdividable property and all things and other structures of any type that were, immediately before the subdivision, located on, in, under or over the subdividable property, are deemed to be wholly consistent with the local government requirements that would otherwise apply to the subdividable property, including, without limitation, all local government zoning bylaws.

No government liability after transfer

48 (1) Subject to section 51 (2) but despite any other enactment or law to the contrary, after real property or any right, title or interest in or to real property is designated as a railway property in a regulation referred to in section 45 (1) or (2), neither the government nor any of its employees, agents, ministers and ministries has

(a) any duty to develop, plan, design or construct anything that, under a revitalization agreement or otherwise, is to be or may be constructed on the railway property or any railbed assets,

(b) any duty to expand, extend, upgrade, remove, maintain, repair, rehabilitate or operate the railway property or any railbed assets,

(c) any duty to instruct or supervise the company or the revitalization rail operator in relation to the railway property or any railbed assets,

(d) any duty of care with respect to any development, planning, design, construction, expansion, extension, upgrading, removal, maintenance, repair, rehabilitation or operation of the railway property or any railbed assets, or with respect to any other activity in relation to the railway property or any railbed assets, that is

(i) done by any person other than the government or any employee, agent, minister or ministry of the government, or

(ii) omitted to be done, or

(e) any liability arising by operation of law in relation to anything that, after the transfer, is done by a person other than the government or an employee, agent, minister or ministry of the government, or is omitted to be done, on or in relation to the railway property or any railbed assets, including, without limitation, any liability in an action based on

(i) nuisance,

(ii) trespass,

(iii) the rule in Rylands v. Fletcher, or

(iv) non-delegable duty.

(2) Subject to section 51 (2) but despite any other enactment or law to the contrary, no damages or compensation of any kind is payable by the government or by any employee, agent, minister or ministry of the government in respect of, and no legal proceeding for damages, compensation of any kind or any other relief lies or may be commenced or maintained against the government or any employee, agent, minister or ministry of the government in respect of, anything that, after the transfer of a railway property under section 45 (4), is done by any person other than the government or an employee, agent, minister or ministry of the government, or that is omitted to be done, on or in connection with the railway property or any railbed assets, including, without limitation, any development, planning, design, construction, expansion, extension, upgrading, removal, maintenance, repair, rehabilitation or operation of any or all of that railway property or any railbed assets.

Liability after closing

49 (1) In this section, "closing" means the date on which one of the following takes effect:

(a) a disposition, to a person in whom the government has no direct or indirect interest, of

(i) the shares of BC Rail Ltd. that are held by the company,

(ii) the shares of BC Rail Ltd. that are held by BCR Properties Ltd., and

(iii) the company's partnership interest in BC Rail Partnership;

(b) a disposition, to a person in whom the government has no direct or indirect interest, of all or substantially all of the assets and undertaking of BC Rail Ltd. and BC Rail Partnership.

(2) Subject to section 51 (1) but despite any other enactment or law to the contrary, after the closing, the company and its directors, officers, employees and agents do not have and each subsidiary and its directors, officers, employees and agents do not have, in relation to the railway property,

(a) any duty to develop, plan, design or construct anything that, under the revitalization agreement, the revitalization rail operator or any of its successors or assigns is to construct on the railway property or any railbed assets,

(b) any duty to expand, extend, upgrade, remove, maintain, repair, rehabilitate or operate the railway property or any railbed assets,

(c) any duty to instruct or supervise the revitalization rail operator or any of its successors or assigns in relation to the railway property or any railbed assets, or

(d) any duty of care with respect to any development, planning, design, construction, expansion, extension, upgrading, removal, maintenance, repair, rehabilitation or operation of the railway property or any railbed assets, or with respect to any other activity in relation to the railway property or any railbed assets, that is omitted to be done or,

(i) in the case of the company and its directors, officers, employees and agents, that is done by any person other than the company or its directors, officers, employees or agents, or

(ii) in the case of a subsidiary and its directors, officers, employees and agents, that is done by any person other than the subsidiary or its directors, officers, employees or agents.

(3) Subject to section 51 (1) but despite any other enactment or law to the contrary, after the closing,

(a) the company and its directors, officers, employees and agents do not have any liability arising by operation of law in relation to anything that, after the closing, is done by any person other than the company or a director, officer, employee or agent of the company, or is omitted to be done, on or in relation to the railway property or any railbed assets, including, without limitation, any liability in an action based on

(i) nuisance,

(ii) trespass,

(iii) the rule in Rylands v. Fletcher, or

(iv) non-delegable duty, and

(b) if, after the closing, anything is done or omitted to be done on or in relation to the railway property or any railbed assets, including, without limitation, any development, planning, design, construction, expansion, extension, upgrading, removal, maintenance, repair, rehabilitation or operation of any or all of that railway property or any railbed assets, no damages or compensation of any kind is payable by any of the following in respect of that act or omission, and no legal proceeding for damages, compensation of any kind or any other relief lies or may be commenced or maintained against any of the following in respect of that act or omission:

(i) the company and any director, officer, employee or agent of the company, unless the act or omission was the act or omission of the company or any director, officer, employee or agent of the company;

(ii) a subsidiary or any director, officer, employee or agent of the subsidiary, unless the act or omission was the act or omission of the subsidiary or any director, officer, employee or agent of the subsidiary.

No liability for failure to terminate or enforce revitalization agreement

50 (1) One or both of the government and the company may take such actions as they consider appropriate to terminate or enforce a revitalization agreement, including, without limitation, any action to terminate or enforce any or all of the interests, rights, powers, permits, approvals and authorizations transferred or taken under the revitalization agreement.

(2) Subject to subsection (3), if the government or the company fails or refuses to take any action under or in connection with a revitalization agreement, including, without limitation, any action to terminate or enforce the revitalization agreement or any or all of the interests, rights, powers, permits, approvals and authorizations transferred or granted under it, in response to any breach by the revitalization rail operator or any of its successors or assigns of any provision of this Act, the regulations, the revitalization agreement or any other agreement, no legal proceeding, whether for damages or compensation of any kind or otherwise, lies or may be commenced or maintained against the government, or any employee, agent, minister or ministry of the government, or the company, or any director, officer, employee or agent of the company, in respect of the failure or refusal.

(3) Subsection (2) does not apply to the government, or any employee, agent, minister or ministry of the government, or to the company, or any director, officer, employee or agent of the company, if the failure or refusal referred to in subsection (2) is in bad faith.

Company and government may accept liability

51 (1) If, in a revitalization agreement or in any other agreement entered into by the company after November 23, 2003, the company expressly agrees to be liable for any specified compensation, payment, loss, costs, expenses or damages for which the company would not otherwise be liable under this subsection and sections 45 to 50, or expressly agrees to perform any specified obligation the company would not otherwise be liable under this subsection and sections 45 to 50 to perform,

(a) the company is liable for the specified compensation, payment, loss, costs, expenses or damages, or for any compensation, payment, loss, costs, expenses or damages resulting from its failure to perform the specified obligation, as the case may be, to

(i) the person to whom it has expressly agreed to be liable or to whom it has promised to perform the specified obligation, as the case may be, and

(ii) any person to whom the person referred to in subparagraph (i) has, in accordance with the terms and conditions of the agreement, assigned some or all of the person's rights under the agreement, and

(b) the company is not liable to any other person for the specified compensation, payment, loss, costs, expenses or damages or for the performance of the specified obligation, as the case may be, whether or not that person is claiming by, through or under a person referred to in paragraph (a).

(2) If, in an agreement entered into by the government after November 23, 2003, the government expressly agrees to be liable for any specified compensation, payment, loss, costs, expenses or damages for which the government would not otherwise be liable under this subsection and sections 45 to 50,

(a) the government is liable for the specified compensation, payment, loss, costs, expenses or damages to

(i) the person to whom it has expressly agreed to be liable, and

(ii) any person to whom the person referred to in subparagraph (i) has, in accordance with the terms and conditions of the agreement, assigned some or all of the person's rights under the agreement, and

(b) the government is not liable to any other person for the specified compensation, payment, loss, costs, expenses or damages, whether or not that person is claiming by, through or under a person referred to in paragraph (a).

Dispositions

52 (1) Subject to subsections (8) and (9), the company must not sell, give or otherwise transfer the fee simple interest in any railway property.

(2) Without limiting any right the company, a subsidiary or BC Rail Partnership may have to dispose of shares held by it in a subsidiary and despite any enactment or law to the contrary, the company, a subsidiary or BC Rail Partnership may dispose, by sale, lease, transfer or otherwise, of any or all of the shares held by it in any subsidiary for any consideration, including, without limitation, one or more of cash, debt, securities, assets and shares of any type.

(3) For the purposes of subsection (2) and section 49 (1) (a) (i) and (ii), on the coming into force of this section,

(a) the company is deemed to hold 12 500 common shares, 154 223 Series A preferred shares, 2 500 Series B preferred shares and 1 550 Series C preferred shares of BC Rail Ltd., and

(b) BCR Properties Ltd. is deemed to hold 37 500 common shares, 462 669 Series A preferred shares, 7 500 Series B preferred shares and 4 650 Series C preferred shares of BC Rail Ltd.

(4) On the coming into force of this section, the shares referred to in subsection (3) are deemed to be

(a) all of the issued shares of BC Rail Ltd.,

(b) duly authorized and issued, and

(c) fully paid non-assessable shares owned by the company or BCR Properties Ltd., as the case may be, free of any encumbrance or any other adverse claims.

(5) Without limiting any right the company or a subsidiary may have to dispose of any interest held by it in BC Rail Partnership and despite any enactment or law to the contrary, the company or a subsidiary may dispose, by sale, lease, transfer or otherwise, of any or all of that interest for any consideration, including, without limitation, one or more of cash, debt, securities, assets and shares of any type.

(6) The company, a subsidiary or BC Rail Partnership may dispose of shares under subsection (2), and the company or a subsidiary may dispose of interests under subsection (5), despite

(a) any provision of any security agreement or other agreement or record that prohibits that disposition without the consent of a specified person or of a person who is a member of a specified class of persons, and

(b) the refusal, failure or neglect to obtain any consent required under paragraph (a).

(7) A disposition under subsection (6) without the consent referred to in that subsection does not constitute a breach or contravention of, or an event of default under, a security agreement or other agreement or record referred to in that subsection, and, without limiting this or section 45 (9), does not entitle any person under any security agreement or other agreement or record to claim any damages or compensation or to terminate the security agreement or other agreement or record.

(8) The Lieutenant Governor in Council may, by regulation, designate, as surplus property, any portion of any railway property if the Lieutenant Governor in Council considers that that portion does not relate to the provision of revitalization rail services.

(9) The company may subdivide any railway property of which real property designated as surplus property under subsection (8) forms a part to create one or more separate titles for that surplus property, and, after that, may dispose of that surplus property by sale, lease or other transfer, including, without limitation, by selling, giving or otherwise transferring the fee simple interest in that surplus property, for any consideration, including, without limitation, one or more of cash, debt, securities, assets and shares of any type.

(10) The company may dispose of any remainder property, within the meaning of section 47, by sale, lease or other transfer, including, without limitation, by selling, giving or otherwise transferring the fee simple interest in that remainder property, for any consideration, including, without limitation, one or more of cash, debt, securities, assets and shares of any type.

(11) Section 258 of the Railway Act does not apply to any disposition contemplated under this section.

Waiver of approvals

53 Subject to section 52 (1), the company may, as part of any revitalization agreement or of any disposition referred to in section 52, do any of the following:

(a) sell the undertaking or any part of the railway of the company without seeking or obtaining the permission of the minister under section 29 (1) (d) of the Railway Act;

(b) dispose of any land or property of the company without seeking or obtaining the permission or approval of the minister under section 30 (c) of the Railway Act;

(c) dispose of or otherwise deal with all or any part of the company's undertaking, railway, property and assets without seeking or obtaining the permission or approval of the minister under section 31 (d) of the Railway Act;

(d) enter into an agreement to sell, convey or lease the railway and undertaking of the company, or to amalgamate with a company, as that term is defined in the Railway Act, without seeking or obtaining the minister's approval of the agreement under section 258 (3) of the Railway Act;

(e) give any guarantee contemplated by section 21 of this Act without seeking or obtaining the approval of the Lieutenant Governor in Council under that section 21;

(f) charge, pledge, deposit or otherwise deal with any securities as collateral security without seeking or obtaining the approval of the Lieutenant Governor in Council under section 7 of the British Columbia Railway Finance Act;

(g) give any guarantee or indemnity without seeking or obtaining any approval or assurance referred to in section 1.1 or 2 (2) of the Guarantees and Indemnities Regulation, B.C. Reg. 258/87.

Commencement

7 This Act comes into force by regulation of the Lieutenant Governor in Council.