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| This Act is current to March 29, 2023 | |||
| See the Tables of Legislative Changes for this Act’s legislative history, including any changes not in force. |
1 In this Act:
"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;
"company" means the British Columbia Railway Company;
"local government" has the same meaning as in the Local Government Act, and includes the City of Vancouver;
"minister", except in sections 48 and 50, means the minister responsible for the administration of the Transportation Act, 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);
"subsidiary" means a corporation of which each share having full voting rights under all circumstances is held, otherwise than solely by way of security, either by the company or another subsidiary.
2 (1) The Railway Act applies to this Act, the company and to the railway constructed by it, except as it may be inconsistent with this Act or the agreement dated February 10, 1912 between the government and Timothy Foley and others.
(2) The expression "this Act", when used in this Act, must be understood to include the clauses of the Railway Act except as indicated in subsection (1).
(3) If any conflict arises between the 2 Acts, this Act governs.
4 The company is for all its purposes an agent of the government, and its powers may be exercised only as an agent of the government.
5 (1) A subsidiary is not an agent or emanation of the government.
(2) Despite the Financial Administration Act, the definition of "government corporation" in that Act does not include a subsidiary as defined in section 1 of this Act.
(3) A subsidiary as defined in section 1 of this Act is a government corporation for the purposes of the Budget Transparency and Accountability Act.
"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.
6 (1) The exemption from taxation conferred by section 2 of the Pacific Great Eastern Railway Taxation Exemption Act, S.B.C. 1926-27, c. 52, as enacted by the Pacific Great Eastern Railway Taxation Exemption Act Amendment Act, 1929, S.B.C. 1929, c. 49, does not exempt the company from liability for tax under the Carbon Tax Act, the Motor Fuel Tax Act, the Provincial Sales Tax Act or Part 7.1 of the South Coast British Columbia Transportation Authority Act.
(2) Despite subsection (1) and section 16, the company and all its subsidiaries are liable for payment of tax under the Property Transfer Tax Act.
(3) Despite the exemption from tax referred to in subsection (1) and section 16, with the approval of the Lieutenant Governor in Council and subject to any conditions specified by the Lieutenant Governor in Council, the company may make, in relation to property of the company or a subsidiary that is within an applicable area, annual grants to
(a) municipalities and other local governments with respect to their jurisdiction, and
(b) the Surveyor of Taxes with respect to a rural area.
(4) Despite the exemption from tax referred to in subsection (1) and section 16, with the approval of the Lieutenant Governor in Council and subject to any conditions specified by the Lieutenant Governor in Council, the company may make to the Surveyor of Taxes annual grants in place of school taxes in relation to property of the company or a subsidiary.
(5) An annual grant under subsection (4) must be paid to the Surveyor of Taxes, whether or not the property of the company or a subsidiary is within a rural area.
7 The company may, by bylaw passed at an annual general meeting
(a) determine that meetings of the directors or the shareholders may be held at any place in British Columbia, or
(b) change the head office to any place in British Columbia.
8 (1) The company may continue the construction and operation of its line of railway in British Columbia, and other lines in British Columbia that are authorized by the Lieutenant Governor in Council.
(2) Despite the agreement referred to in section 2 (1), the common law and the provisions of this or any other enactment, including the Railway Act and the Act to Ratify an Agreement bearing Date the Tenth Day of February, 1912, between His Majesty the King and Timothy Foley, Patrick Welch, and John W. Stewart, and an Agreement bearing Date the Twenty-third Day of January, 1912, between the Grand Trunk Pacific Railway Company and the Grand Trunk Pacific Branch Lines Company and said Foley, Welch, and Stewart, 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).
(3) Nothing in subsection (2) removes from a revitalization rail operator the obligation to provide rail service in accordance with the revitalization agreement.
9 The company may construct, maintain and operate a system of telegraph lines in British Columbia and transact a commercial business on them.
10 The company may construct, maintain and operate a system of telephone lines along any of its lines of railway, and transact a commercial business on them.
12 The company may own, lease, operate, manage and control steamships, steam ferries and other boats and vessels, and operate and use them in connection with its business.
13 The company may purchase, build, erect, equip, maintain, use and operate wharves, docks, slips, warehouses, elevators and storehouses and carry on a general wharfinger, elevator, warehouse and storehouse business in connection with them.
14 The company may acquire and operate coal mines in British Columbia, and acquire all necessary and convenient land in connection with them.
15 The company may acquire and dispose of stock, shares, debentures, bonds and securities of other railway companies, and of hydraulic, electric, irrigation and other companies.
16 The exemption from taxation conferred by section 2 of the Pacific Great Eastern Railway Taxation Exemption Act, S.B.C. 1926-27, c. 52, as enacted by the Pacific Great Eastern Railway Taxation Exemption Act Amendment Act, 1929, S.B.C. 1929, c. 49, and further modified by section 6 of this Act, extends to every subsidiary, but this section does not exempt any subsidiary from liability for income tax.
17 The company may promote any other company or association of persons for any purposes which may seem, directly or indirectly, calculated to benefit the company, and for that purpose the company may
(a) obtain an Act of Parliament or of the Legislature which may seem expedient, and
(b) oppose proceedings which may seem calculated, directly or indirectly, to prejudice the company's interests.
18 The company has the power to purchase lines of constructed railway, all their branch lines, and the rights and privileges belonging to them, all in British Columbia.
19 The company may acquire by purchase or lease or make running arrangements with any railway lines in British Columbia.
21 (1) With the prior approval of the Lieutenant Governor in Council, the company may guarantee in whole or in part the payment of the principal, interest or performance of the obligations of bonds, debentures or other securities, debts or obligations of any person, if the terms of the guarantee agreement have been approved by resolution of the shareholders of the company, passed by not less than 2/3 in value of those present or represented by proxy at a special meeting called for the purpose.
(2) The form and manner of guarantee must be approved by the board of directors, and the guarantee must be signed by the officers designated by the board.
(3) On signature and delivery, the company is, to the extent of the guarantee, liable to the holders for the time being of the securities, debts or obligations guaranteed.
22 (1) The company may receive, from a government or from a person bonuses, land, loans, gifts, money or securities for money to assist in the construction, equipment and maintenance of the railway.
(2) The company may use, work or dispose of the bonuses, land, loans, gifts, money or securities for money except as prevented by the terms of a bonus, gift or grant.
23 The capital stock of the company is $1 billion divided into 10 million shares of $100 each.
24 (1) The directors of the company, by bylaw, may
(a) provide that any portion of the capital stock, not exceeding $600 million, be issued as preferred stock,
(b) determine the nature and character of the preference to be given to the preferred stock, and
(c) determine the rate of interest and those things necessary to enable the company to issue the portion of its capital stock as preferred stock.
(2) The directors, by bylaw, may authorize the company to redeem its redeemable preferred stock despite any deficit in its shareholders' equity account.
25 The money raised by the company by borrowings or on its capital stock must be applied to the making, equipping and maintaining of the railway and other purposes of this Act.
26 (1) Annual meetings of shareholders must be held at the time and place prescribed by the bylaws of the company.
(2) If no time and place is specified, or if the time for holding a meeting in any year passes without a meeting, the directors may set the time and place.
27 Special general meetings of the shareholders of the company may be held
(a) in British Columbia at the place and time, in the manner and for the purposes provided for by the bylaws of the company, and
(b) without notice if all the shareholders are present in person or by proxy.
28 In the transaction of all business at general shareholders' meetings, each shareholder has one vote, in person or by proxy, for each share of which the person is the registered holder.
29 The shares of the company
(a) must be registered in the name of and held by the BC Transportation Financing Authority, and
30 (1) A board of directors for the management of the company's business, consisting of not more than 9 members, may be appointed by the Lieutenant Governor in Council, to hold office during pleasure.
(2) The directors must exercise the powers and perform the functions directed by the Lieutenant Governor in Council.
31 If any provision of section 29 or 30 conflicts with this or another Act, the provision prevails.
32 (1) A director may appoint another director to be his or her proxy to vote at a meeting of the board.
(2) In determining a quorum of directors, each director represented by proxy is deemed to be personally present.
33 (1) The board of directors may make the bylaws and rules they believe proper for any or all of the following:
(a) the management of the property of the company;
(c) the duties and conduct of the officers and employees;
(e) all matters which concern the company.
(2) The board may appoint engineers, agents and employees necessary to effect the objects of the company, and do all acts and things related to the acquisition, location, construction, maintenance and operation of the railway, telegraph and telephone lines, express, steamship, ferry and other affairs which the company is authorized to carry on.
(3) Despite subsections (1) and (2) or any other Act, if the directors establish a fund for the payment of superannuation allowances to its employees or allowances on the disability or death of employees, the following matters must not be the subject of a collective agreement between the company and its employees:
(a) the establishment and maintenance of the fund;
(b) payment of superannuation allowances or allowances on the disability or death of employees;
(c) contributions to the fund by the company and its employees;
(d) the terms and conditions on which superannuation allowances or other allowances may be payable;
33.1 Despite any other provision of this or any other enactment, the company must
(i) to the government or a government organization, within the meaning of the Budget Transparency and Accountability Act, as directed by Treasury Board, and
(ii) in the amounts and at the times directed by Treasury Board, and
(b) promptly after receiving a direction under paragraph (a), take all actions necessary to cause the company's subsidiaries to make such payments, if any, to the company as may be necessary to allow the company to comply with the direction.
34 (1) The company may expropriate, acquire, use and enjoy land, and the right of way to it if separated from the railway, and may dispose of that land or parts of it as it believes expedient if it is necessary to acquire the land for any of the following purposes:
(d) to construct, maintain or use the railway;
(e) to open a street to a station from an existing highway;
(f) any other purpose connected with the railway.
(2) For the purpose of the railway. the company may use and dam the water of any stream or watercourse over or near which the railway passes, not being navigable waters.
(3) If the company uses its powers under subsection (2) it must not do any unnecessary damage and must not impair the usefulness of the stream or watercourse.
(4) The arbitration provisions of the Railway Act apply if property is sought to be taken or if damage is claimed to have been done by the company under this section or section 36.
35 The company has the power to acquire and dispose of land for any purpose of the company and for townsites, parks and pleasure grounds, and to lay out and survey that land.
36 On and after the date of deposit of a map, plan or book of reference under the Railway Act describing property that is required for a right of way, terminal, station ground or other railway purpose, and for as long as that property continues to be so required, the property is reserved from location or alienation under the Mineral Tenure Act or the Petroleum and Natural Gas Act.
37 (1) At any time during negotiations for land required by the company and in any case where, in the opinion of the minister, a delay in beginning or continuing construction of a part or extension of the railway would not be in the public interest or would cause unnecessary inconvenience or expense to the company, the minister, with the approval of the Lieutenant Governor in Council, by certificate under the minister's seal of office, may authorize the company, on or after a date to be stated in the certificate, to enter on, occupy and use any land to construct, operate and maintain any part or extension of the railway.
(2) A certificate must be published without delay in one issue of the Gazette.
(3) Publication of the certificate under subsection (2) is deemed to be notice to all persons concerned.
(4) Within 60 days after exercising the authority conferred by a certificate or within any further time as the Supreme Court allows, the company must take steps to expropriate or otherwise acquire the land required.
(5) Within 10 days of service of the notice of expropriation or within any further time allowed by the court, the company must give security for the compensation which may be awarded and the costs of arbitration by paying into court double the amount offered by it in the notice of expropriation.
(6) The money paid into court must not be less than the assessed value.
(7) The money may be paid out only by court order.
(8) If any resistance or forcible opposition is made by any person to the exercise by the company of an authorization, the court must, on proof of the certificate, issue a warrant to the sheriff in the county to put down the resistance or opposition and to put the company in possession.
38 Despite any other Act, if the minister exercises the authority under section 37 and the company complies with that section, the company, its officers, employees or contractors may enter on, occupy and use the land for the purposes required, including, by way of illustration, construction of tunnels through or under the land.
39 Sections 37 and 38 do not limit, restrict or abrogate rights and privileges held, exercised or enjoyed by the company under a contract in existence on March 15, 1955, or under any Act.
40 (1) The company may become party to promissory notes and bills of exchange for not less than $100, and without the seal of the company on the notes or bills.
(2) This section must not be interpreted as authorizing the company to issue a note or bill payable to bearer, or intended to be circulated as money, or as the note or bill of a bank.
41 (1) The company may, with the consent of the Lieutenant Governor in Council, amalgamate with another company.
(2) An amalgamation may be by deed, which, however, does not have effect until approved of by 2/3 of the votes of the shareholders of each company at an annual or special general meeting of each company called for the purpose and at which shareholders representing at least 2/3 in value of the capital stock of each company are present or represented by proxy.
(3) The amalgamating companies form one company under the name set out in the deed.
42 (1) Subject to this Act and the Act of the other amalgamating company and any other legislation governing the matter, on approval of an agreement for amalgamation the companies are amalgamated and form one company under the name and on the terms and conditions provided in the agreement.
(2) The amalgamated company possesses and is vested with all the railways, undertakings and other powers, rights, privileges, franchises, assets, effects and property belonging to, possessed by or vested in the companies or to which they or either of them may be or become entitled, and is liable for all claims, demands, rights, securities, complaints, debts, obligations, works, contracts, agreements or duties to as full an extent as either of the companies was at or before amalgamation.
43 (1) If in any Act, regulation, order, contract, certificate, licence or other document made before March 30, 1972 a reference is made to the Pacific Great Eastern Railway Company, or to a director or officer of the company by any designation including the name of the company, the reference is deemed to be to the British Columbia Railway Company or to a director or officer of it.
(2) Nothing in the British Columbia Railway Act, S.B.C. 1972, c. 8, affects the rights and liabilities or any debt, duty, obligation, undertaking, privilege, credit, asset, property, right of action or interest of the company acquired or given under its former name.
44 It is unnecessary for a holder of any bond, debenture, debenture stock or other security, purporting to be issued by the company, to inquire into the legality of the incorporation or organization of the company, but the issue of any bond, debenture, debenture stock or other security by or on behalf of the company is conclusive evidence in all courts and otherwise that the company has been properly incorporated and organized, and was at the time of the issue of the bond, debenture, debenture stock or other security properly authorized and empowered to issue it.
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
(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.
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.
"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.
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
(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
(iii) the rule in Rylands v. Fletcher, or
(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.
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
(iii) the rule in Rylands v. Fletcher, or
(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.
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.
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).
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.
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;
(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.
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