Canada Gazette, Part I, Volume 153, Number 23: ORDERS IN COUNCIL
June 8, 2019
ORDERS IN COUNCIL
DEPARTMENT OF TRANSPORT
Certificate of amalgamation of port authorities
P.C. 2019-732 May 30, 2019
Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to section 59.1 of the Port Authorities Management Regulations, hereby issues the annexed certificate of amalgamation of the port authorities specified in the certificate.
CERTIFICATE OF AMALGAMATION OF PORT AUTHORITIES
WHEREAS pursuant to Order in Council P.C. 2019-70 a certificate of intent to amalgamate the Hamilton Port Authority and the Oshawa Port Authority was issued on January 31, 2019;
AND WHEREAS the notice requirements pertaining to the certificate of intent to amalgamate set out in subsection 59.1(2) of the Port Authorities Management Regulations have been met;
AND WHEREAS the Minister of Transport has recommended that the Hamilton Port Authority and the Oshawa Port Authority be amalgamated and continue as one port authority to be named the Hamilton-Oshawa Port Authority;
AND WHEREAS, pursuant to paragraph 59.7(k) of the Port Authorities Management Regulations, the letters patent contained in this certificate of amalgamation are the letters patent of the Hamilton-Oshawa Port Authority;
NOW THEREFORE under the authority of section 59.1 of the Port Authorities Management Regulations, it is hereby certified that the Hamilton Port Authority and the Oshawa Port Authority are amalgamated and continue as one port authority to be named the Hamilton-Oshawa Port Authority, effective June 18, 2019.
EXPLANATORY NOTE
(This note is not part of the Order.)
Proposal
That the Governor in Council (GiC) issue a Certificate of Amalgamation for the Canada Port Authorities (CPAs) of Hamilton and Oshawa, pursuant to subsection 59.1(1) of the Port Authorities Management Regulations (PAMR), which permits the Governor in Council to amalgamate two or more port authorities and continue as one port authority.
Objective
To ensure the long-term sustainability of port operations and strengthen the Canadian supply chain in Ontario by providing a coordinated approach to port management, development, land use and marketing.
Background
The Governor in Council (GiC), on the recommendation of the Minister of Transport, issued a certificate of intent to amalgamate these two CPAs on February 9, 2019. The Minister of Transport is amalgamating the Hamilton Port Authority (HPA) and the Oshawa Port Authority (OPA) to form the Hamilton-Oshawa Port Authority (HOPA), effective June 18, 2019.
Canada is a trading nation that relies on its port system. Eighteen CPAs are part of Canada’s national port system. CPAs like the HPA and OPA are non-share capital corporations incorporated under the 1998 Canada Marine Act (CMA) that have been recognized to be of strategic significance to Canada’s trade. CPAs handle approximately 60 percent of Canada’s marine commercial cargo tonnage and contribute over $25 billion to Canada’s gross domestic product. The HPA was established in 2001 and is the largest CPA in Ontario, whereas the OPA, established in 2012, is the smallest CPA both in terms of revenues generated and volume of cargo handled.
A certificate of intent to amalgamate was published in the Canada Gazette, Part I, on February 9, 2019, and signaled the Government of Canada’s interest in amalgamating the HPA and OPA. Consistent with subsection 59.1(2) of the PAMR, a consultation period followed where interested persons were invited to submit their comments. This public consultation period was originally scheduled to end on March 11, 2019. In response to requests by certain stakeholders for additional time to submit their input, Transport Canada extended the duration of the consultation period from 30 to 45 days; bringing the end of the consultation period to March 26, 2019.
Implications
Consideration was given to the following implications of an amalgamation between the HPA and the OPA.
Financial
An amalgamation under the PAMR is administrative in nature and will not represent further financial costs for the Government of Canada or to the Canadian public.
Operations at both ports will continue without disruption as all current contracts and liabilities will continue under an amalgamated port. The amalgamated port is expected to be in a strong financial position, in particular due to the strong financial performance of the HPA. The forecasted performance of the amalgamated port indicates positive growth for the foreseeable future.
Environmental
There are no expected environmental implications, as no changes to the current land holdings, infrastructure, or real property of the HPA and OPA are being made. Provisions have been made to protect a buffer zone that is federal real property and that is adjacent to the Second Marsh Wildlife Area in Oshawa.
Economic
No job losses are expected from the amalgamation of these two CPAs. Rather, amalgamation is expected to strengthen the Lake Ontario transportation corridor by allowing the amalgamated port authority the ability to strategically plan and invest, improve port efficiencies, and leverage key investments as well as connect to global markets and contribute to Canada’s competitiveness. In addition, the amalgamated port authority is expected to be better able to attract long-term investment more strategically, based on the ability to plan from a region wide perspective, and to improve port efficiencies. Continuity of operations at both ports will result in continued direct and indirect economic benefits for surrounding communities.
Consultations
Through a 45-day consultation period, Transport Canada received a total of 26 submissions/inquiries and engaged directly with a variety of stakeholders with an interest in the future of the HPA and the OPA, including Members of Parliament, the province of Ontario, municipalities, each ports’ Board of Directors and management, port users, Indigenous communities, transportation and marine specialists, and the general public.
Overall, stakeholders recognized and/or supported Transport Canada’s rationale for pursuing amalgamation. One of the most common views expressed was a desire for constructive dialogue between stakeholders and the amalgamated port authority to ensure its success. Stakeholders in the Hamilton area were overall supportive. Meanwhile, stakeholders in Oshawa expressed a combination of support and understanding for the proposed amalgamation as well as some concern over the length of the consultation period and the specific business case for amalgamation. Both municipalities expressed their concern that care be given to ensure appropriate municipal representation exist on an amalgamated Board of Directors and economic development under an amalgamated entity not favour one region over another.
Media coverage on the proposed amalgamation appeared balanced and suggested a general agreement that an amalgamated port authority would be able to better leverage available financial, human and operational resources and promote efficiencies within the supply chain.
Transport Canada took into consideration the views raised during the consultation period as it considered whether or not to amalgamate the two port authorities. As a result, measures were taken to address concerns raised during the consultation period, including:
- extending the consultation period by 15 days to provide stakeholders additional time to submit their views, as well as to allow Transport Canada to respond to concerns expressed about the rationale for amalgamation;
- making provisions to protect a buffer zone that separates port operations from the adjacent Second Marsh Wildlife Area in Oshawa, responding to concerns regarding local and development issues.
- identifying the legal name of the amalgamated entity based on the comments received and the attributes of the existing port authorities;
In addition, steps are being taken to ensure an appropriately balanced Board of Directors for the amalgamated port authority that ensures representation from both the municipalities of Hamilton and Oshawa.
Contact
TC.portamalgamation-fusionport.TC@tc.gc.ca
HAMILTON-OSHAWA PORT AUTHORITY
WHEREAS Letters Patent were issued by the Minister of Transport under the authority of the Canada Marine Act (“Act”) for the Hamilton Port Authority (effective May 1, 2001) and the Oshawa Port Authority (effective January 25, 2012);
AND WHEREAS, on the recommendation of the Minister of Transport, the Governor In Council issued a Certificate of Intent to Amalgamate the Hamilton Port Authority and the Oshawa Port Authority to continue as one port authority;
AND WHEREAS the Certificate of Amalgamation continues the Amalgamating Port Authorities as one Port Authority to be named the Hamilton-Oshawa Port Authority;
NOW THEREFORE, pursuant to paragraph 59.7(k) of the Port Authorities Management Regulations, the Letters Patent contained in the Certificate of Amalgamation are the Letters Patent of the Hamilton-Oshawa Port Authority, and are as follows:
ARTICLE 1
EFFECTIVE DATE, DEFINITIONS AND INTERPRETATION
1.1 Effective Date. These Letters Patent take effect on the day specified in the Certificate of Amalgamation.
1.2 Definitions. In these Letters Patent, unless the context otherwise requires, terms used herein shall have the meaning ascribed to such terms in the Act and in addition:
- “Act” means the Canada Marine Act as amended from time to time; (Loi)
- “Appointing Body” means, in relation to a director, the body, entity or authority appointing such director; (organisme de nomination)
- “Authority” means the Hamilton-Oshawa Port Authority; (administration)
- “Board” means the board of directors of the Authority; (conseil)
- “Borrowing” has the meaning ascribed to such term in section 9.3; (emprunts)
- “Capital Investment” means in relation to a Subsidiary, an amount equal to the aggregate of the aggregate potential liability of the Authority pursuant to the terms of a Permitted Indemnity or Guarantee and any contribution of cash or property made by the Authority to such Subsidiary whether by way of outstanding shareholder loan, subscription for shares, gift or otherwise, other than contributions by the Authority to the Subsidiary by way of a lease or licence of property held or administered by the Authority for fair market value; (capital engagé)
- “Capitalized Lease Liabilities” means all monetary obligations of the Authority under any leasing or similar arrangements which, in accordance with GAAP, would be classified as capitalized leases and the amount of such obligations for the purposes of calculating Borrowing shall be the capitalized amount thereof, determined in accordance with GAAP; (passif de contrat de location-acquisition)
- “Classes of users” means the classes of users for the purposes of subparagraph 8(2)(f)(iv) of the Act which are described in the annexed Schedule D; (catégories d’utilisateurs)
- “Code of Conduct” means the code of conduct governing the conduct of directors and officers set forth in the annexed Schedule E; (code de déontologie)
- “Contingent Liability” means any agreement, undertaking or arrangement by which the Authority guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the indebtedness, obligation or any other liability of any other person or entity (other than by endorsements of instruments in the course of collection), or guarantees the payment of dividends or other distributions. The amount of any obligation under any Contingent Liability shall (subject to any limitation set forth therein) be deemed to be the outstanding principal amount (or maximum principal amount, if larger) of the debt, obligation or other liability guaranteed thereby; (elément de passif éventuel)
- “Director” means a member of the Board; (administrateur)
- “Fair market value” means for a good, service, facility or right, the amount which would be paid or received by an arm’s length third party acting free from compulsion or duress in an open market for a comparable good, service, right or facility available on comparable terms; (juste valeur marchande)
- “Fiscal Year” means the fiscal year of the Authority, as established by the Authority from time to time; (exercice)
- “GAAP” means generally accepted accounting principles in Canada; (PCGR)
- “Gross Revenue Charge” has the meaning ascribed in such term in section 6.2; (frais sur les revenus bruts)
- “Her Majesty” means Her Majesty in Right of Canada; (Sa Majesté)
- “Letters Patent” means these letters patent as amended by supplementary letters patent, if any, and includes any schedules hereto and thereto; (Lettres patentes)
- “Minister” means the Minister of Transport; (ministre)
- “Nominating Committee” means the committee described in section 4.6 (Comité de mise en candidature)
- “Officer” means an officer of the Authority; (dirigeant)
- “Permitted Indemnity or Guarantee” means financial assistance given by the Authority for the benefit of any Subsidiary, whether by way of indemnity, guarantee or otherwise which financial assistance must state the aggregate potential liability of the Authority in dollar terms; (indemnité ou garantie autorisée)
- “Regulations” means the regulations made under the Act; (règlement)
- “Significant Legal Proceedings” means legal proceedings for which the Authority or any Subsidiary has been served with written notice of the commencement of legal proceedings where such notice claims damages in excess of $250,000; (procédure judiciaire importante)
- “Subsidiary” means any wholly-owned subsidiary of the Authority incorporated from time to time in accordance with the Act and these Letters Patent; (filiale)
- “Sufficient Return” means monies paid to the Authority in a Fiscal Year by a Subsidiary in which the Authority has made a Capital Investment in an amount no less than the annual yield which would have been received by the Authority had it invested an amount equal to the Capital Investment, less the amount of the aggregate potential liability of the Authority pursuant to the terms of any Permitted Indemnity or Guarantee, if any, comprised in such Capital Investment, in non-callable Government of Canada bonds, issued at par, in Canada on the closest issue date to the date upon which the Capital Investment was made by the Authority and maturing ten years from the date of issue; (rendement suffisant)
- “User Director” means a director to be appointed pursuant to paragraph 14(1)(d) of the Act; (administrateur représentatif des utilisateurs)
- “Work Contract” has the meaning ascribed to such term in section 8.4; (contrat de travail)
1.3 Conflicts with Act or Regulations. If there is any conflict between the Letters Patent and the Act or Regulations, the Act or Regulations shall prevail.
1.4 Conflicts with By-laws. If there is any conflict between the Letters Patent and the by-laws of the Authority, the Letters Patent shall prevail.
ARTICLE 2
DESCRIPTION OF AUTHORITY
2.1 Name of Authority. The corporate name of the Authority is the Hamilton-Oshawa Port Authority.
2.2 Registered Office of Authority. The registered office of the Authority is located at 605 James Street N, Suite 600, Hamilton, Ontario L8L 1K1.
ARTICLE 3
DESCRIPTIONS OF NAVIGABLE WATERS AND PROPERTY
3.1 Description of Navigable Waters. The description of the navigable waters that are within the jurisdiction of the Authority is set out in Schedule A hereto.
3.2 Description of Federal Real Property. The federal real property that is managed by the Authority is described in Schedule B hereto.
3.3 Description of Real Property other than Federal Real Property. The real property, other than federal real property, held or occupied by the Authority is described in Schedule C hereto.
3.4 Estoppel Respecting Property Descriptions. The descriptions of federal real property, real property other than federal real property and navigable waters referred to in this article shall not be interpreted as a representation, warranty or admission and shall not operate as an estoppel by or against any person, including Her Majesty, in respect of title, including aboriginal title, or any beneficial interest in, or any claim to such property.
ARTICLE 4
DIRECTORS AND DIRECTORS’ MEETINGS
4.1 Number of Directors. The Board shall consist of seven (7) directors.
4.2 Qualifications of Directors. The following individuals may not be directors:
- (a) an individual who is a mayor, councillor, officer or employee of one of the municipalities described in subsection 4.4(b) below;
- (b) an individual who is a member of the legislature of the Province of Ontario, or an officer or employee of the public service or of a Crown corporation of the province of Ontario;
- (c) a Senator or a member of the House of Commons;
- (c.1) an officer or employee of the federal public administration, a federal Crown corporation or a port authority;
- (d) an individual who is not a resident Canadian, as defined in subsection 2(1) of the Canada Business Corporations Act;
- (e) an individual who is a director, officer or employee of a person who is a user of the port;
- (f) an individual who is under 18 years of age;
- (g) an individual who has been declared mentally incompetent by a court in Canada or elsewhere; or
- (h) an undischarged bankrupt.
4.3 Quorum for Meeting of Directors. The quorum necessary for the transaction of business at a meeting of the Board shall be a majority of the number of directors in office of which the Authority has actual knowledge of their appointment. A quorum of directors may exercise all powers of the Board.
4.4 Appointment of Directors. The directors of the Authority shall be appointed to hold office as follows:
- (a) the Governor in Council appoints one (1) individual nominated by the Minister;
- (b) the City of Hamilton and the City of Oshawa, in consultation with the City of Burlington, appoints one (1) individual;
- (c) the Province of Ontario appoints one (1) individual; and
- (d) the Governor in Council appoints the four (4) remaining individuals nominated by the Minister in consultation with the users selected by the Minister or with the classes of users.
4.5 Committees of the Board. The Board may appoint from among its number one or more committees of the Board, however designated, and delegate to any such committee any of the powers of the Board, except the Board shall not delegate to any committee the power to:
- (a) fill a vacancy in the office of the auditor of the Authority;
- (b) issue debt obligations except in the manner and on the terms authorized by the Board;
- (c) approve the audited financial statements of the Authority;
- (d) adopt, amend or repeal by-laws; or
- (e) authorize or ratify any activity carried on or to be carried on or any power exercised or to be exercised by a Subsidiary.
4.5.1 Duties of the Board Respecting Appointment of Directors. The Board shall perform the following functions:
- (a) develop and annually update a long-term plan for the composition of the Board, in terms of the optimal combination of skills, background or experience, which plan shall take into consideration the skills, background and experience of existing directors, retirement dates and the strategic direction of the Authority;
- (b) at least six (6) months prior to the expiry of the term of a director appointed by the Governor in Council under paragraph 14(1)(a) of the Act, by the municipality under paragraph 14(1)(b) of the Act and by the province of Ontario under paragraph 14(1)(c) of the Act, provide notice to the Appointing Body that the term of its appointee is about to expire and request an appointment; where the Appointing Body is the Governor in Council, the notice required hereunder shall be sent to the Minister;
- (c) at least six (6) months prior to the expiry of the term of office of a director appointed by the Governor in Council under paragraph 14(1)(d) of the Act, provide notice to the Minister with a copy to the Nominating Committee that the term of such appointee is about to expire and request an appointment;
- (d) provide to each Appointing Body, a current copy of the plan described in subsection 4.5.1(a) and also provide a profile of the skills, background and experience of the continuing directors; and
- (e) in the event a User Director ceases to hold office, the Board shall forthwith provide to the Minister and the Nominating Committee, and if any other director ceases to hold office, the chairperson of the Board shall forthwith provide to the Appointing Body, a written request for a new appointment to fill such vacancy together with a copy of the plan described in subsection 4.5.1(a) and the profile described in subsection 4.5.1(d); where the Appointing Body is the Governor in Council, the request required hereunder shall be sent to the Minister.
4.6 Nomination Process for User Directors. The classes of users established for the purpose of providing recommendations for nominations for User Directors are listed in Schedule D. The users within Class 1 will recommend potential candidates for one of the User Director positions; the users within Class 2 will recommend potential candidates for two of the User Director positions; and the users within Class 3 will recommend potential candidates for one of the User Director positions.
A permanent Nominating Committee shall be formed and be composed of four members; one person to be appointed by users in Class 1; two persons to be appointed by users in Class 2; and one person to be appointed by users in Class 3.
The chief executive officer of the Authority is not a member of the Nominating Committee, however, the chief executive officer, or such other person who may be designated by the Board in the absence of the chief executive officer, will provide administrative support to the Nominating Committee and the nomination process. If there is a vacant User Director position, or an anticipated vacancy, the chief executive officer, in consultation with the Nominating Committee, shall coordinate the development of a list of potential candidates by administering and facilitating the following process in a timely manner so as to ensure that the length of any User Director vacancy is minimized:
- (a) contact the members of the appropriate class of users by any method(s) the chief executive officer and the Nominating Committee deem appropriate but including advertising by public notice with a view to inviting individuals to submit their names as potential candidates for the User Director vacancy. Recommendations for nomination must include the curriculum vitae and qualifications of the potential candidates together with the confirmation of acceptance of the potential nomination and a statement of willingness to serve on the Board from each such candidate;
- (b) compile a list of potential candidates from all the names of candidates received;
- (c) the Nominating Committee shall ensure that there is a minimum of two and a maximum of four potential candidates for each User Director position;
- (d) the Nominating Committee shall be responsible for reviewing the recommendations from the applicable class of users ensuring that the potential candidates have the skills, background and experience required of a director of the Authority as specified in the Act, and for forwarding recommendations to the Minister; and
- (e) the nomination process shall adopt and follow such other procedures, as the Nominating Committee deems appropriate to solicit potential candidate nominations including advertising by public notice.
The chief executive officer, in consultation with the Nominating Committee, shall develop and maintain a data base of port users in each class of users.
4.7 Scope of Process. Nothing in the process described in section 4.6 is intended to or shall derogate from, interfere with, or substitute for, any consultation, inquiry, public input or process the Minister chooses to undertake in determining the candidates to be nominated by the Minister pursuant to the provision of paragraph 14(1)(d) of the Act. The Minister, in consultation with users, selected by the Minister or the classes of users mentioned in Schedule D, shall at all times have the flexibility and discretion to nominate as User Directors persons other than those persons recommended by the Nominating Committee to ensure an appropriate mix of the Board members at all times.
4.8 Duties of Directors Respecting Contracting. The directors shall take all necessary measures to ensure:
- (a) that the Authority and any Subsidiary that enters into a contract, including a contract for the borrowing of money, other than as agent of Her Majesty shall do so in its own name, and that such contract expressly states that the Authority or Subsidiary is entering into the contract on its own behalf and not as agent of Her Majesty; and
- (b) that any subcontract arising directly or indirectly from a contract described in subsection 4.8(a) expressly states that the Authority or Subsidiary, as the case may be, enters into the contract on its own behalf and not as agent of Her Majesty.
ARTICLE 5
CODE OF CONDUCT
5.1 Code of Conduct. The Code of Conduct governing the conduct of the directors and officers is set out in Schedule E hereto.
ARTICLE 6
GROSS REVENUE CHARGE
6.1 Interpretation. For the purposes of this article, the following terms shall have the following meanings:
- (a) “Applicable Tax” means, with respect to a particular Fiscal Year, the aggregate amount of income tax payable by the Authority and Subsidiaries to Her Majesty but excluding any income tax payable by Subsidiaries whose Revenue for such Fiscal Year is a Permitted Exclusion pursuant to paragraph 6.1(d)(ii); (Impôt applicable)
- (b) “Calculated Gross Revenue” means, for a particular Fiscal Year, the amount determined by subtracting the amount equal to the aggregate of the Permitted Exclusions for such Fiscal Year from the Revenue for such Fiscal Year; (Revenu brut calculé)
- (c) “Disclosure Statement” has the meaning ascribed to such term in section 6.4; (Déclaration)
- (d) “Permitted Exclusions” means:
- (i) any gains or losses realized by the Authority or a Subsidiary on the sale by the Authority or a Subsidiary of federal real property pursuant to the Federal Real Property Act;
- (ii) all Revenue of a Subsidiary, provided that:
- (A) the Subsidiary is subject to pay income tax to Her Majesty on such Revenue; and
- (B) the Authority has not, at any time, made a Capital Investment in or benefiting the Subsidiary in an amount greater than $1,000 or, if in excess of such amount:
- (1) such Capital Investment has yielded a Sufficient Return for the relevant Fiscal Year; or
- (2) the Authority and the Subsidiary are in compliance with such terms and conditions, including any related to financial return, imposed by the Minister at the time the Capital Investment in or benefiting such Subsidiary was made; and
- (iii) the aggregate amount of all reasonable allowances and write-offs of receivables which have been determined by the Authority within the particular Fiscal Year not to be collectible or likely to be collectible provided such determination is made in accordance with GAAP; and (Exclusions autorisées)
- (e) “Revenue” means the aggregate amount of all revenue recognized by the Authority and all Subsidiaries in accordance with GAAP. (Revenu)
6.2 Calculation of Gross Revenue Charge. The Authority shall annually pay to the Minister a charge (the “Gross Revenue Charge”) to maintain the Letters Patent in good standing equal to the aggregate of the following amounts:
- (a) 2% of the first $10,000,000 of Calculated Gross Revenue for the Fiscal Year to which the charge relates;
- (b) 4% of the amount of any Calculated Gross Revenue between $10,000,001 and $20,000,000 for the Fiscal Year to which the charge relates;
- (c) 6% of the amount of any Calculated Gross Revenue between $20,000,001 and $60,000,000 for the Fiscal Year to which the charge relates;
- (d) 4% of the amount of any Calculated Gross Revenue between $60,000,001 and $70,000,000 for the Fiscal Year to which the charge relates; and
- (e) 2% of the amount of any Calculated Gross Revenue in excess of $70,000,001 for the Fiscal Year to which the charge relates;
less Applicable Tax, if any, for the Fiscal Year to which the charge relates.
6.3 Payment of Gross Revenue Charge. The Authority shall pay the Gross Revenue Charge for each Fiscal Year to the Minister no later than ninety (90) days from the end of each Fiscal Year.
6.4 Disclosure Statement. The Authority shall include with every Gross Revenue Charge payment a disclosure statement (the “Disclosure Statement”) in the form prescribed by the Minister from time to time setting forth, inter alia, an itemized list of the sources of revenue comprising the Calculated Gross Revenue and Permitted Exclusions.
6.5 Acceptance of Payment by Minister. The acceptance by the Minister of any Gross Revenue Charge payment made hereunder or the issuance of a certificate of good standing pursuant to section 6.10 in respect of such payment shall not preclude the Minister from disputing the calculation, inclusion or omission of any item in connection with the calculation of such Gross Revenue Charge and adjusting the amount of the Gross Revenue Charge payable by the Authority in a particular Fiscal Year pursuant to section 6.7.
6.6 Audit and Inspection. In addition to any disclosure required under the Act in connection with a special examination respecting the Authority, the Minister shall be entitled at any time to review the books, records, systems and practices of the Authority and Subsidiaries and take copies and extracts from the books and records of the Authority and Subsidiaries for the purposes of verifying the information contained in the Disclosure Statement provided by the Authority and Subsidiaries to the Minister pursuant to section 6.4. The Authority and Subsidiaries shall furnish to the Minister all information in its possession or to which it is entitled to possession that may be required by the Minister in connection with an audit and inspection by the Minister.
6.7 Adjustment of Gross Revenue Charge. If an audit and investigation conducted pursuant to section 6.6 or a review by the Minister of the Disclosure Statement discloses a difference between the amount which in the Minister’s opinion should have been paid by the Authority as Gross Revenue Charge for a particular Fiscal Year and the amount actually paid by the Authority for such Fiscal Year, the Minister may readjust the Gross Revenue Charge payable by the Authority for such Fiscal Year. In the event that the readjustment results in the Authority paying a further amount to the Minister in respect of the Gross Revenue Charge for a particular Fiscal Year, the Minister shall invoice the Authority for such amount. The Authority shall pay the Minister the invoiced amount together with all interest accrued thereon on or before thirty (30) days following the date of receipt of the invoice.
6.8 Set-Off. The Minister shall be entitled to set-off any amount owing to Her Majesty by the Authority against any payment owing to the Authority by the Minister in accordance with the provisions of the Financial Administration Act. If an audit, investigation or review by the Minster contemplated by section 6.7 discloses amounts owed by the Minister to the Authority, the Authority shall be entitled to set-off such amount against any payment owed to the Minister by the Authority.
6.9 Interest on Outstanding Amounts. Interest shall accrue annually on any outstanding balance owing to the Minister in respect of a Gross Revenue Charge payment or on any payment to be made by the Authority or the Minister in connection with a readjustment of a Gross Revenue Charge payment, at the interest rate equal to the prime rate of interest established by the Bank of Canada from time to time plus 2%.
6.10 Certificate of Good Standing. Forthwith, upon receipt from the Authority of the full amount of the Gross Revenue Charge for a particular Fiscal Year, the Minister shall issue to the Authority a certificate of good standing in a form to be determined by the Minister confirming that the Letters Patent are in good standing as of the date of the certificate. Provided there are no amounts owing to the Minister by the Authority under this article 6, including any amounts owed pursuant to an adjustment of the Gross Revenue Charge under section 6.7, the Minister shall, upon request by the Authority at any time during a Fiscal Year, issue a certificate of good standing to the Authority confirming the Letters Patent are in good standing as of the date of the certificate.
ARTICLE 7
ACTIVITIES AND POWERS OF THE AUTHORITY AND SUBSIDIARIES
7.1 Activities of the Authority Related to Certain Port Operations. To operate the port, the Authority may undertake the port activities referred to in paragraph 28(2)(a) of the Act to the extent specified below:
- (a) development, application, enforcement and amendment of rules, orders, by-laws, practices or procedures and issuance and administration of authorizations respecting use, occupancy or operation of the port and enforcement of Regulations or making of Regulations pursuant to subsection 63(2) of the Act;
- (b) management, leasing or licensing the federal real property described in Schedule B or described as federal real property in any supplementary letters patent, subject to the restrictions contemplated in sections 8.1 and 8.3 and provided such management, leasing or licensing is for, or in connection with, the following:
- (i) those activities described in sections 7.1 and 7.2;
- (ii) those activities described in section 7.3 provided such activities are carried on by Subsidiaries or other third parties pursuant to leasing or licensing arrangements;
- (iii) the following uses to the extent such uses are not described as activities in section 7.1, 7.2 or 7.3:
- (A) uses related to shipping, navigation, transportation of passengers and goods, handling of goods and storage of goods;
- (B) provision of municipal services or facilities in connection with such federal real property; public parks and recreation; social services; and marine related activities carried on by government departments or agencies;
- (C) uses not otherwise within subparagraph 7.1(b)(iii)(A), (B) or (D) that are described in supplementary letters patent; and
- (D) government sponsored economic development initiatives approved by Treasury Board;
- provided such uses are carried on by third parties, other than Subsidiaries, pursuant to leasing or licensing arrangements;
- (c) exchanging federal real property described in Schedule B or described as federal real property in any supplementary letters patent for other real property of comparable market value subject to the issuance of supplementary letters patent that describe the other real property as federal real property;
- (d) mortgaging, pledging or otherwise creating a security interest in any fixture on federal real property described in Schedule B or as federal real property in any supplementary letters patent provided that:
- (i) such mortgage, pledge or other security interest charges only the fixture or fixtures which is or are acquired, built, restored, enhanced or replaced with proceeds received by the Authority and secured by such mortgage, pledge or other security interest; and
- (ii) the party receiving such mortgage, pledge or other security interest agrees that upon the exercise of the right to remove such fixtures from the federal real property such exercise shall be conducted in a manner that causes no greater damage or injury to such federal real property and to the other property situated on it or that puts the occupier of the federal real property or the Authority to no greater inconvenience than is necessarily incidental to the removal of the fixtures;
- (e) disposition of any fixtures on federal real property described in Schedule B or as federal real property in any supplementary letters patent whether by way of removal, demolition, sale, lease, license or exchange;
- (f) construction, establishment, repair, maintenance, operation, removal or demolition of:
- (i) disposal sites for carrying out the activities contemplated by paragraph 7.1(i)(ii);
- (ii) berths, wharfs, anchorages, breakwaters, waterways, docks, dockwalls, channels, fill sites, erosion control and shore protection works;
- (iii) facilities for vessel fuelling stations incidental to the handling and shipping of goods as limited to the port, within the City of Oshawa and Part 2 of Schedule A;
- (iv) facilities or equipment for finish or assembly work incidental to the handling or shipping of goods;
- (v) transportation, terminal, warehousing and other port facilities or equipment;
- (vi) office premises to be utilized by the Authority in the conduct of its activities; and
- (vii) facilities for vehicle storage, repair and fuelling stations incidental to the handling or shipping of goods;
- within the port or for users of the port in connection with their use of the port and its facilities;
- (g) operation or maintenance of a railway within the port;
- (h) operation or maintenance of a marina or cruise ship terminal as limited to the port, within the City of Hamilton and the City of Burlington and Part 1 of Schedule A;
- (i) the provision of services or carrying out of activities within the port or to or for users of the port in connection with their use of the port and its facilities as follows:
- (i) environmental assessment, audit, remediation, rehabilitation of marine habitat or other such services;
- (ii) dredging, waste and dredgeate disposal and sale of dredgeate (except that contaminated waste and contaminated dredgeate disposal services can be provided only for users of the port in connection with their use of the port and its facilities);
- (iii) navigational services and aids;
- (iv) stevedoring services;
- (v) building, design, maintenance, engineering, repair and operation of vessels owned by the Authority or leased by the Authority from third parties;
- (vi) emergency planning and response;
- (vii) vehicle parking, control or marshalling facilities;
- (viii) manufacture or distribution of utilities, including the provision of communication facilities and telecommunication services;
- (ix) multi-modal facilities and services;
- (x) transport services within the port or transport services within or between the Cities of Hamilton and Burlington, to provide access to or from the port and its facilities;
- (xi) providing information and information technology to users of the port;
- (xii) salvage and seizure;
- (xiii) warehousing and distribution of goods and services;
- (xiv) security services and dispatching services;
- (xv) harbour patrol services for the navigable waters of the port;
- (xvi) providing expertise in connection with software or know-how developed in the course of conducting the activities described in the provisions of this section 7.1; and
- (xvii) winter berthing and storage of vessels;
- (j) undertaking research and development related to the activities described in this section 7.1;
- (k) promoting, marketing and undertaking public or governmental relations to promote use of the port;
- (l) producing, co-ordinating, sponsoring and hosting of public or civic events;
- (m) in pursuing or exercising the remedies available to it as lessor or licensor of premises on federal real property described in Schedule B or described as federal real property in any supplementary letters patent, the conduct of any business or activity from such premises for a period limited to one year unless supplementary letters patent are issued; and
- (n) carrying on activities described in section 7.1 on real property other than federal real property described in Schedule C or described as real property other than federal real property in any supplementary letters patent;
provided that in conducting such activities the Authority shall not enter into or participate in any commitment, agreement or other arrangement whereby the Authority is liable jointly or jointly and severally with any other person for any debt, obligation, claim or liability.
7.2 Activities of the Authority Necessary to Support Port Operations. To operate the port, the Authority may undertake the following activities which are deemed necessary to support port operations pursuant to paragraph 28(2)(b) of the Act:
- (a) subject to the provisions of article 9 below:
- (i) borrowing money upon the credit of the Authority;
- (ii) limiting or increasing the amount to be borrowed;
- (iii) issuing bonds, debentures or other securities of the Authority;
- (iv) pledging or selling such bonds, debentures or other securities for such sums and at such prices as may be deemed expedient;
- (v) securing any such bonds, debentures or other securities, or any other present or future borrowing or liability of the Authority, by mortgage, charge, pledge or other security interest relating to all or any currently owned or subsequently acquired real and personal, movable and immovable, property and leasehold interests and reversionary interests of the Authority, and the undertaking and rights of the Authority, provided, however, that the Authority may not mortgage, hypothecate, pledge or otherwise create a security interest in federal real property described in Schedule B or as federal real property in any supplementary letters patent other than to:
- (A) pledge the revenues of the federal real property described in Schedule B or as federal real property in any supplementary letters patent; or
- (B) create, pursuant to the exercise of the powers of the Authority contemplated by subsection 7.1(d), a mortgage, pledge or other security interest in fixtures on federal real property described in Schedule B or as federal real property in any supplementary letters patent; and
- (vi) issuing a Permitted Indemnity or Guarantee, provided that the cumulative amount of all such Permitted Indemnities or Guarantees shall at no time exceed one-tenth of the aggregate Borrowing maximum amount specified in section 9.2;
- provided that any contract, bond, debenture or financial assistance related to such borrowing, issuance, pledging or securing shall contain a covenant, proviso or acknowledgement from the lender or counterparty that the lender or counterparty shall have no recourse against Her Majesty or any assets of Her Majesty;
- (b) renting equipment;
- (c) administration, leasing or licensing of real property other than federal real property described in Schedule C or described as real property other than federal real property in any supplementary letters patent, subject to the restrictions contemplated in sections 8.1 and 8.3 and provided such administration, leasing or licensing is for, or in connection with, the following:
- (i) those activities described in sections 7.1 and 7.2;
- (ii) those activities described in section 7.3 provided such activities are carried on by Subsidiaries or other third parties pursuant to leasing or licensing arrangements;
- (iii) the following uses to the extent such uses are not described as activities in sections 7.1, 7.2 or 7.3:
- (A) uses related to shipping, navigation, transportation of passengers and goods, handling of goods and storage of goods, including the following uses to or for users of the port in connection with their use of the port and its facilities: marine and marina services; processing work incidental to the handling or shipping of goods through the port to the extent compatible with the land-use plan for the port referred to in section 48 of the Act; restaurants, retail operations, tourist services and similar tourism-related activities located in passenger terminal facilities provided such uses are related to the transportation of passengers through the port and are compatible with the land-use plan of the port referred to in section 48 of the Act; towing or tug services; operation of union hiring halls for the purposes of union business, including the assembling, hiring, paying and dispatching of union labour, and other related union activities, for actual and potential employees of users of the port;
- (B) provision of municipal services or facilities in connection with such real property; public parks and recreation; social services; and marine related activities carried on by government departments or agencies;
- (C) residual office premises as limited to the port, within the City of Hamilton and the City of Burlington;
- (D) media productions; manufacturing or processing of goods or conduct of small-scale wholesale or retail business in premises acquired or held for future development of the port provided they remain in total of a size and scope comparable to those uses existing on May 1, 2001, to the extent compatible with port operations and the land-use plan for the port referred to in section 48 of the Act and without compromising the ability of the Authority to operate port facilities over the long term; food, beverage and retail services in support of the local tourism industry and for users of the port; and waterlots as may be required by abutting residential homeowners for the establishment of private docks for recreational use and private enjoyment; and
- (E) government sponsored economic development initiatives approved by Treasury Board;
- provided such uses are carried on by third parties, other than Subsidiaries, pursuant to leasing or licensing arrangements;
- (d) carrying on activities described in section 7.2 on federal real property described in Schedule B or described as federal real property in any supplementary letters patent or on real property other than federal real property described in Schedule C or described as real property other than federal real property in any supplementary letters patent;
- (e) acquisition, disposition, holding, leasing or licensing of personal property;
- (f) incorporate a corporation all of whose shares on incorporation would be held by, on behalf of or in trust for the Authority provided that the Authority does not, at any time, make a Capital Investment in a Subsidiary such that the Authority’s cumulative Capital Investment in all Subsidiaries exceeds an amount equal to:
- (i) 50% of the net income of the Authority as shown in the last annual audited financial statements of the Authority submitted to the Minister prior to the making of such Capital Investment, before deducting from such net income the amounts shown in such statements for depreciation and/or amortization and excluding extraordinary items; or
- (ii) if such statements have not yet been submitted, then 50% of the net income of the predecessor of the Authority as shown in the financial statements included in the last annual report of such predecessor submitted to the Minister prior to the making of such Capital Investment, before deducting from such net income the amounts shown in such statements for depreciation and/or amortization and excluding extraordinary items;
- g) in pursuing or exercising the remedies available to it as lessor or licensor of premises on real property other than federal real property described in Schedule C or described as real property other than federal real property in any supplementary letters patent, the conduct of any business or activity from such premises; and
- (h) development, operation, maintenance, renovation and demolition of rest areas, public parks, pedestrian and bicycle paths and observation areas within the boundaries of the port.
7.3 Activities of Subsidiaries Necessary to Support of Port Operations. A Subsidiary may undertake the following activities which are deemed necessary to support port operations pursuant to paragraph 28(2)(b) of the Act:
- (a) borrowing money on the credit of a Subsidiary;
- (b) limiting or increasing the amount to be so borrowed;
- (c) issuing bonds, debentures or other securities of the Subsidiary;
- (d) pledging or selling such bonds, debentures or other securities for such sums and at such prices as may be deemed expedient;
- (e) securing any bonds, debentures or other securities, or any other present or future borrowing or liability of the Subsidiary, by mortgage, charge, pledge or other security interest relating to all or any currently owned or subsequently acquired real and personal, moveable and immovable property and leasehold interests and reversionary interests of the Subsidiary and the undertaking and rights of the Subsidiary;
- (f) participating as a partner, shareholder or co-venturer in a partnership, corporation, joint venture or similar arrangement in connection with the activities described in this section 7.3 and pledging, selling or securing such participation, interest or investment by mortgage, charge, pledge or other security interest;
- (g) providing expertise to third parties, for use outside the boundaries of the port in connection with software or know-how developed in carrying out the activities specified in section 7.1(i)(xvi);
- (h) acquisition, disposition, occupying, holding, developing, leasing or licensing, real property other than federal real property, for, or in connection with, the activities described in this article 7;
- (i) carrying on activities described in section 7.3 on real property other than federal real property;
- (j) leasing or licensing real property from the Authority for, or in connection with, the activities described in section 7.3;
- (k) operation of freight forwarding, consolidating, trading or brokerage facilities or services and warehousing, storage and handling of cargo, freight and goods outside the port or in connection with persons who are not users of the port;
- (l) operation of dry dock facilities;
- (m) acquisition, disposition, holding, leasing or licensing of personal property;
- (n) carrying out of the activities including the provision of services as follows:
- (i) environmental assessment, audit, remediation or other such services;
- (ii) navigational services and aids;
- (iii) security and dispatching services;
- (iv) stevedoring services;
- (v) maintenance, repair and operation of vessels;
- (vi) emergency planning and response;
- (vii) vehicle parking, control or marshalling facilities; and
- (viii) multi-modal facilities and services;
- outside the port or in connection with persons who are not users of the port;
- (o) operation of an industrial park for activities compatible with port operations and the land-use plan for the port referred to in section 48 of the Act; and
- (p) in pursuing or exercising the remedies available to it as lessor or licensor of premises on real property other than federal real property described in Schedule C or described as real property other than federal real property in any supplementary letters patent, the conduct of any business or activity from such premises.
7.4 Restrictions Respecting Federal Real Property. Notwithstanding any other provision of these Letters Patent, the federal real property described in this Article 7.4 paragraph (i) shall be maintained for the purpose of a buffer zone that is respectful of the environment of the Oshawa Second Marsh, and shall not be used for any purpose other than the use made of the federal real property on June 14, 2019.
- (i) a portion of the federal real property described in plan 67590 of the Directory of Federal Real Property, as shown on the record produced by Transport Canada and identified as Plan TC-CPA-BZ-001, being the portion located between the Eastern boundary of the federal real property bordering on the Second Marsh Wildlife Area, the Eastern boundary of a port dredging material disposal area (mound), the Northern boundary being situated close to waterfront Trail and the Southern boundary being situated close to Lake Ontario. The parcel is of irregular shape, varying from approximately 60 to 100 meters in width and being approximately 570 meters in length, making up a total area of approximately 4.0 hectares.
7.5 Powers of the Authority and Subsidiaries. The Authority has the power to carry out the activities specified in sections 7.1 and 7.2. Subsidiaries have the power to carry out the activities specified in section 7.3.
ARTICLE 8
LEASING AND CONTRACTING
8.1 Restriction on Leasing and Licensing. The Authority shall not grant a lease or licence of real property for a term in excess of 60 years where such lease or licence is granted pursuant to section 7.1(b)(i), 7.1(b)(iii)(A), 7.1(b)(iii)(B), 7.2(c)(i), 7.2(c)(iii)(A) or 7.2(c)(iii)(B) or for a term in excess of 40 years where such lease or licence is granted pursuant to section 7.1(b)(ii), 7.1(b)(iii)(C), 7.1(b)(iii)(D), 7.2(c)(ii), 7.2(c)(iii)(D) or 7.2(c)(iii)(E) provided however that:
- (a) with the written consent of the Minister, the Authority may lease or license such real property for a maximum term of 99 years; and
- (b) nothing contained in this section shall restrict the ability of the Authority or a Subsidiary to grant a road allowance, easement, right of way or licence for utilities, services or access for any term.
8.2 Calculation of Term of Lease or Licence. For the purpose of section 8.1, “term” shall mean, in relation to a lease or licence, the sum of:
- (a) the number of years for which a lessee or licensee has the right to occupy the demised premises or licensed area; and
- (b) the maximum number of years not included in the calculation under subsection 8.2(a) that, by the exercise of rights or options to renew or extend the lease or licence agreement, the lessee or licensee may occupy the demised premises or licensed area.
8.3 Fair Market Value Requirement. The Authority shall ensure that every lease or license of real property to be entered into following the effective date of the Letters Patent pursuant to which the lessees or licensees carry on uses described in subparagraph 7.1(b)(iii)(C), 7.1(b)(iii)(D), 7.2(c)(iii)(D), 7.2(c)(iii)(E) or activities described in section 7.2 or 7.3 shall be for not less than fair market value provided, however, that with the written consent of the Minister, the Authority may lease or licence such real property for uses described in subparagraph 7.1(b)(iii)(D) or 7.2(c)(iii)(E) at less than fair market value.
8.4 Tendering Requirement Respecting Work Contracts. The Authority shall establish and implement a written policy respecting the entering into by the Authority of any agreement (a “Work Contract”) for the construction, renovation, repair or replacement of a building, structure, facility, work or undertaking, the excavation, filling or development of any real property or the provision of materials in connection therewith. Such policy shall set forth:
- (a) the requirements respecting the publication of a notice or advertisement requesting bids for Work Contracts;
- (b) the policies and procedures respecting bidding for Work Contracts;
- (c) the requirement to provide potential bidders for a Work Contract with reasonable access during normal business hours to the proposed work site for the purposes of assessing the site conditions relevant to the performance of the Work Contract; and
- (d) exceptions to tendering requirements:
- (i) where there exists only one supplier of the work;
- (ii) for emergencies;
- (iii) where the Authority itself performs the work;
- (iv) where the delay resulting from compliance with formal tendering requirements is reasonably expected to be injurious to the public interest; and
- (v) for Work Contracts below a value determined by the Board.
ARTICLE 9
BORROWING
9.1 No Borrowing as an Agent. The Authority and any Subsidiaries may not borrow money as an agent of Her Majesty. Every contract for the borrowing of money shall contain an acknowledgement of the lender that it shall have no recourse against Her Majesty or any assets of Her Majesty.
9.2 Restriction on Incurrence of Borrowing. The Authority shall not incur any item of Borrowing so that the aggregate Borrowing of the Authority would exceed $45,500,000.
9.3 Borrowing. “Borrowing” means the following items for the Authority (adjusted to give effect to the provisions of section 9.4), without duplication, as follows:
- (a) all obligations for borrowed money and all obligations evidenced by bonds, debentures, notes, or other similar instruments on which interest charges are customarily paid, recorded in accordance with GAAP;
- (b) all obligations, contingent or otherwise, relative to the face amount of all letters of credit, whether or not drawn, and bankers’ acceptances issued;
- (c) any obligation as lessee under leases which have been or should be, in accordance with GAAP, recorded as Capitalized Lease Liabilities;
- (d) all obligations to pay the deferred purchase price of property or services, and indebtedness (excluding prepaid interest thereon) secured by a lien on property owned or being purchased by the Authority (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by the Authority or is limited in recourse and recorded in the financial statements of the Authority and Subsidiaries for the most recently completed Fiscal Year;
- (e) accrued contingent losses reflected as a charge to income in accordance with GAAP and recorded in the financial statements of the Authority and Subsidiaries for the most recently completed Fiscal Year;
- (f) all Contingent Liabilities of the Authority in respect of any of the foregoing; or
- (g) the amount of the aggregate potential liability of the Authority pursuant to the terms of a Permitted Indemnity or Guarantee.
9.4 Exclusion of Subsidiaries. In determining the Borrowing pursuant to section 9.3, any amounts pertaining to Subsidiaries carrying on activities contemplated by paragraph 28(2)(b) of the Act shall be excluded.
9.5 Certificate of the Authority. Concurrent with the submission of financial statements to the Minister contemplated by subsection 37(4) of the Act, the Authority shall deliver to the Minister a certificate executed by the chief executive officer of the Authority stating:
- (a) the amount of the aggregate Borrowing of the Authority at the end of the Fiscal Year to which such financial statements relate;
- (b) that the Authority is not in default or has not committed an event of default under any of the terms of its Borrowing except those which it is contesting in good faith or if such default or event of default exists, the particulars thereof;
- (c) that since the date of the last certificate provided hereunder the Authority has not been served with written notice of any Significant Legal Proceedings or, if the Authority has been served, particulars of such legal proceedings;
- (d) if any Capital Investment in a Subsidiary has been made by the Authority during the Fiscal Year to which such financial statements relate, the amount of such Capital Investment, the annual rate of return required for such Capital Investment to yield a Sufficient Return and the amounts paid by all Subsidiaries on account of payment of Sufficient Return; and
- (e) that the Authority is not aware of any contract for the borrowing of money on the amount exceeding $1,000,000 which fails to contain the express statement stipulated in subsection 28(5) of the Act;
provided that the Authority may satisfy its obligations pursuant to this section through delivery to the Minister of a copy of the letter delivered to the auditor of the Authority in connection with the annual audit of the financial statements of the Authority which contains substantially the same information as contemplated by this section.
ARTICLE 10
SUBSIDIARIES
10.1 Constating Documents of Subsidiary. The constating documents of every Subsidiary shall state that the Subsidiary cannot exercise any power as an agent of Her Majesty.
10.2 Use of Authority Property and Employees. Prior to a Subsidiary utilizing the property, services, facilities or employees of the Authority in connection with the Subsidiary’s activities or vice versa, the Subsidiary and Authority shall enter into a written agreement whereby the recipient covenants to pay fair market value for use of such property, services, facilities or employees.
10.3 Mandatory Standby Fee. Every Subsidiary shall pay and the Authority shall collect from each Subsidiary a one-time guarantee standby fee for each Permitted Indemnity or Guarantee given by or on behalf of the Authority which fee shall be in an amount not less than one-half of one percent of the maximum dollar amount of such Permitted Indemnity or Guarantee given by the Authority.
10.4 Prohibition on Indemnities. Other than Permitted Guarantees or Indemnities, no guarantee, indemnity or other agreement or commitment may be given by or on behalf of the Authority for the discharge of an obligation or liability of a Subsidiary, whether such obligation or liability be contingent or otherwise.
ARTICLE 11
FEDERAL OBLIGATIONS
11.1 International and Provincial Obligations. The Authority shall comply with all obligations applicable to the Authority arising under any international agreement, convention or arrangement, or any federal-provincial agreement, including:
- (a) Canadian Free Trade Agreement;
- (b) North American Free Trade Agreement;
- (c) Canada Chile Free Trade Agreement;
- (d) World Trade Organization General Agreement on Trade in Services; and
- (e) Port State Control Agreements;
to which Her Majesty is a party, whether such agreement, convention or arrangement, or federal provincial agreement is entered into before or after the date of issuance of these Letters Patent.
11.2 Federal Identity. The Authority shall:
- (a) display the Canadian flag prominently at the port;
- (b) display the “Canada” wordmark on a prominent building at the port; and
- (c) apply the “Canada” wordmark prominently on all the Authority’s identity applications.
11.3 Emergency Preparedness. The Authority shall, at the request of the Minister and in accordance with applicable policies established by Her Majesty from time to time, provide all the support required by the Minister to fulfil the responsibilities of the Minister under the Emergency Management Act, S.C. 2007, c. 15.
ARTICLE 12
BY-LAWS
12.1 By-Laws. The directors of the Authority may, by resolution, make, amend or repeal by-laws that regulate the affairs of the Authority or the duties of officers and employees.
ISSUED under my hand to be effective on the day specified in the Certificate of Amalgamation as the day upon which the amalgamation of the Hamilton Port Authority and the Oshawa Port Authority takes effect.
The Honourable Marc Garneau, P.C., M.P.
Minister of Transport
SCHEDULE A
HAMILTON-OSHAWA PORT AUTHORITY
DESCRIPTION OF NAVIGABLE WATERS
PART 1 (Hamilton)
ALL the waters of Hamilton Harbour (formerly Burlington Bay) together with all the inlets thereof, including Cootes Paradise, but excepting Burlington Channel.
PART 2 (Oshawa)
All the waters of Lake Ontario within the following limits: COMMENCING at the high water mark of Lake Ontario where it intercepts the easterly limit of Lot 1 of the broken front concession of the Township of East Whitby; THENCE, along the high water mark in a westerly direction to a point where it intercepts the westerly limit of Lot 17 of the broken front concession of the Township of East Whitby; THENCE, in a southerly direction 3,000 feet into Lake Ontario on the extension of the said westerly limit of Lot 17; THENCE, on a straight line in an easterly direction to a point on a southerly extension of the easterly limit of Lot 1, 3,000 feet from the high water mark; THENCE, in a northerly direction to the point of commencement and all water front property, wharves, piers, docks, buildings, shores and beaches in or along the said waters.
SCHEDULE B
HAMILTON-OSHAWA PORT AUTHORITY
DESCRIPTION OF FEDERAL REAL PROPERTY
PART 1 (Hamilton)
1. All and singular that certain parcel or tract of land situate, lying and being part of the Government Reserve (Canal Reserve), North of the Burlington Canal, in the Geographic Township of Saltfleet, now in the City of Burlington, in the Regional Municipality of Halton and being composed of Parts 1 and 2 on Reference Plan 20R-13281.
2. All and singular that certain parcel or tract of land situate, lying and being part of the Government Reserve (Canal Reserve), South of Burlington Canal, in the Geographic Township of Saltfleet, now in the City of Hamilton, in the Regional Municipality of Hamilton-Wentworth and being composed of Parts 1, 2, 3, 4, 5 and 6 on Reference Plan 62R-15102.
3. Any interests in land, whether or not registered, to the extent that they are interests in land in accordance with the Federal Real Property Act, in any way belonging or appertaining to, or, benefiting, any of the lands described above.
SAVE AND EXCEPT as to all the lands set out above:
- (i) the federal real property listed above under the administration of a Member of the Queen’s Privy Council for Canada other than the Minister of Transport or any successor thereto, if that Member has not given consent to the Minister in accordance with paragraph 44(2)(b) of the Act; and
- (ii) all lands situate within the areas described above vested in the name of a person other than the Authority, The Hamilton Harbour Commissioners, Her Majesty the Queen in Right of Canada, His Majesty the King in Right of Canada, or any other name used to designate the Crown in Right of Canada.
PART 2 (Oshawa)
- 1. PIN 16380-0108 (LT), designated as Parts 2, 3 and 4 on Plan 40R-21634 deposited in the land registration system of Ontario.
- 2. PIN 16380-0105 (LT), designated as Parts 5, 6 and 7 on Plan 40R-21634 deposited in in the land registration system of Ontario.
- 3. PIN 16378-0025 (LT), designated as Parts 1 and 2 on Plan 40R-21632 deposited in the land registration system of Ontario.
- 4. PIN 16378-0104 (LT), designated as Parts 1 to 9 on Plan 40R-21635 deposited in the land registration system of Ontario; SAVE and EXCEPT Parts 1, 2 and 3 on Plan 40R-26890.
- 5. PIN 16394-0108 (LT), designated as Part 11 on Plan 40R-21636 deposited in the land registration system of Ontario.
- 6. PIN 16394-0103 (LT), designated as Part 1 on Plan 40R-21636 deposited in the land registration system of Ontario.
- 7. PIN 16394-0107 (LT), designated as Part 4 on Plan 40R-21636 deposited in the land registration system of Ontario.
- 8. PIN 16394-0113 (LT), designated as Part 3 on Plan 40R-21636 deposited in the land registration system of Ontario.
- 9. PIN 16394-0114 (LT), designated as Part 2 on Plan 40R-21636 deposited in the land registration system of Ontario.
- 10. PIN 16394-0208 (LT), designated as Part 6 on Plan 40R-21636 deposited in the land registration system of Ontario.
- 11. PIN 16394-0212 (LT), designated as Part 5 on Plan 40R-27139 in the land registration system of Ontario.
- 12. PIN 16394-0117 (LT), designated as Part 10 on Plan 40R-21636 in the land registration system of Ontario.
- 13. PIN 16394-0120 (LT), designated as Part 5 on Plan 40R-21636 in the land registration system of Ontario.
- 14. PIN 16394-0209 (LT), being part of the bed of Lake Ontario and designated as Part 1 on Plan 40R-21940 in the land registration system of Ontario.
- 15. PIN 16378-0048 (LT), being all of water lot location DT-60, being part of the bed of Lake Ontario, and designated as Part 2 on Plan 40R-21940 in the land registration system of Ontario.
- 16. Part of PIN 16394-0216 (LT), designated as Part 15 on Plan 40R-21636 and Part 10 on a Plan 40R-27129, both plans deposited in the land registration system of Ontario.
SCHEDULE C
HAMILTON-OSHAWA PORT AUTHORITY
DESCRIPTION OF REAL PROPERTY OTHER THAN FEDERAL REAL PROPERTY
PART 1 (Hamilton)
Note: References to draft Reference Plans in the descriptions hereinbelow, unless otherwise described, relate to the preliminary compiled plans prepared by Ross A. Clarke, O.L.S., of Mackay Mackay & Peters Limited, dated March, 2001, under Project No. 98-031-3R(H), to be maintained on file at the registered office of the Authority.
1. Part of the bed of Hamilton Harbour in front of Lots 14, 15, 16, 17, 18 19 and 20, Concessions 1 and Broken Front, Geographic Township of Barton, Lots 12 and 13, Broken Front Concession, Geographic Township of East Flamborough and Lot 14, Broken Front Concession, Geographic Township of West Flamborough, now in the City of Hamilton, designated as Parts 1, 2, 3, 4 and 5 on sheet no. 3 of the draft Reference Plans.
2. Part of Unnumbered Lot and all of Lots 6 and 7, Block 11, Registered Plan 127 (Sir A.N. MacNab Survey), Geographic Township of Barton, now in the City of Hamilton, designated as Part 1 on Reference Plan 62R-15750.
3. Part of the bed of Hamilton Harbour in front of Lots 10, 11, 12, 13 and 14, Broken Front Concession, Water Lots in front of Lots 10, 11, 12, 13 and 14, Broken Front Concession, Part of Lots 11, 12 and 13, Broken Front Concession, including Part of lot 13, Broken Front Concession, formerly township of Barton, now city of Hamilton, being P.I.N. 17579-0079 (LT) being municipally known as 560 Ferguson Avenue North, Hamilton, Ontario, Part of Lot 12, Concession 1, Part of the Road Allowance between Lots 12 and 13 closed by By-law No. 83-175, registered as Instrument No. 267183AB, all of Lots 1 and 46, Part of Lot 45, Registered Plan 493 (Landsdowne Park Survey), all of Lots 107 to 127, both inclusive, Registered Plan 32 (J.T. Gilkinson Survey), Geographic Township of Barton, now in the City of Hamilton, designated as Parts 1 to 32, both inclusive, on sheet no. 1 of the draft Reference Plans.
4. Part of the Water Lots in front of Lots 9 and 10, Broken Front Concession, Part of Lots 7, 8 and 9, Broken Front Concession, Part of the Road Allowance between Lots 8 and 9, closed by By-law No. 290 (registered as Instrument No. 37 By-law), all of Lots 174 to 203, 230 to 270, 281 to 300, all inclusive, Reserve 5, Part of Lots 204, 205 and Reserve 4, Parts of Ship Street, Land Street, Gilkinson Street, Dickson Street, McKinstry Street and Richie Street (all closed by By-law No. 1028, registered as Instrument No. 208 By-law), Registered Plan 32 (J.T. Gilkinson Survey), Geographic Township of Barton, now in the City of Hamilton, designated as Parts 1 to 21, both inclusive, on sheet no. 2 of the draft Reference Plans.
5. Part of the bed of Hamilton Harbour in front of Lots 9, 10, 11, 12, 13, 14, 15 and 16, Broken Front Concession, Geographic Township of Barton, now in the City of Hamilton, designated as Part 1 on sheet no. 7 of the draft Reference Plans.
6. Part of the bed of Hamilton Harbour in front of Lots 9, 10, 11, 12, 13, 14 and 15, Broken Front Concession, Geographic Township of Barton and Lots 5, 6, 7, 8, 9 and 10, Broken Front Concession, Water Lot in front of Lot 7, Broken Front Concession, Geographic Township of East Flamborough, now in the City of Hamilton, designated as Part 1 on sheet no. 8 of the draft Reference Plans.
7. Part of the bed of Hamilton Harbour in front of Lots 3, 4, 5, 6, 7, 8 and 9, Broken Front Concession, Geographic Township of Barton, now in the City of Hamilton, designated as Part 1 on sheet no. 9 of the draft Reference Plans.
8. Part of the bed of Hamilton Harbour in front of Lots 1, 2, 3, 4 and 5, Broken Front Concession, Geographic Township of East Flamborough, now in the City of Hamilton, designated as Part 1 on sheet no. 10 of the draft Reference Plans.
9. Part of the bed of Hamilton Harbour adjoining Burlington Beach, Geographic Township of Saltfleet and in front of Registered Plan 614 (Inglehaven Survey), Geographic Township of East Flamborough, the Water Lot in front of Registered Plan 97 (Filmans Survey), Part of Lot 10 and Block A, Registered Plan 97 (Filmans Survey), Part of Block 2, Registered Plan 47 (J.S. McMurray’s Survey), Geographic Township of Nelson, now in the City of Burlington, Regional Municipality of Halton, designated as Parts 1 to 8, both inclusive, and Parts 10 to 16, both inclusive, on sheet no. 11 of the draft Reference Plans provided that as to Parts 10, 11 and 12, the same are included herein to the extent of any right, title and interest heretofore held by The Hamilton Harbour Commissioners, and such inclusion is without prejudice to any right, title and interest of Her Majesty the Queen in right of Canada in said Parts.
10. Part of the bed of Hamilton Harbour adjoining Burlington Beach and part of Burlington Beach, west side of Beach Boulevard, South of the Canal Reserve, Geographic Township of Saltfleet, now in the City of Hamilton, designated as Parts 1, 2, 3, 4, 5, 6, 7, 8 and 9 on sheet no. 6 of the draft Reference Plans, provided that as to Parts 1, 2, 3 and 9, the same are included herein to the extent of any right, title and interest heretofore held by The Hamilton Harbour Commissioners, and such inclusion is without prejudice to any right, title and interest of Her Majesty the Queen in right of Canada in said Parts.
11. Part of the bed of Hamilton Harbour adjoining Burlington Beach and part of Burlington Beach, Geographic township of Saltfleet, now in the City of Hamilton, designated as Parts 1 to 9, both inclusive, on sheet no. 5 of the draft Reference Plans.
12. Part of the bed of Hamilton Harbour and Water Lots in front of Lot 1, Broken Front Concession, Geographic township of Barton, Lots 31, 32, 33 and 34, Broken Front Concession, Geographic Township of Saltfleet, Part of Lots 33 and 34, Broken Front Concession and Burlington Beach, Part of Lot 1, Registered Plan 440 (R. Fletcher Survey), Geographic Township of Saltfleet, Part of Lot 1, Broken Front Concession, Geographic Township of Barton, now in the City of Hamilton, designated as Parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 on sheet 4 of the draft Reference Plans.
EXCEPT:
1. Parts 4, 5, and 7, Plan 62R-15661, City of Hamilton
13. Concession Broken Front Barton Part Lots 7 and 8 [BTN HAM], Part Closed Road Allowance, more Specifically Described as Parts 3, 4, 5, 11 and 12 on Reference Plan 62R-15207, known municipally as 450 Sherman Avenue North, in the City of Hamilton.
14. PIN 17575-0020, designated as Part 1 on Plan 62R-10465 in the land registration system of Ontario.
15. PIN 17576-0061 (R) and 17576-0062 (R):
- A) PIN 17576-0061 (R), designated as Part 1 on Plan 62R-17015 in the land registration system of Ontario;
- B) PIN 17576-0062 (R), designated as Part 2 on Plan 62R-17015 in the land registration system of Ontario.
16. PIN 17251-0032 (LT), shown as Part 1 on Plan 62R-19863 in the land registration system of Ontario.
17. Pier 22, also known and designated as the Rod Mill Lands Property, legal description:
PIN 17574-0018 (R) and part of PIN 17574-0001 (R) as registered in the land registration system of Ontario.
Part of Lots 1 and 2 Broken Front Concession and Part of the Water Lot lying in front of Lots 1 and 2, Broken Front Concession.
Formerly in the Township of Barton, now in the City of Hamilton.
Designated as Parts 1 to 28 both inclusive on Plan 62R-17462.
Together with a right of way over Part of Lot 1 Concession Broken Front designated as Part 29, 30, 31 and 32 on 62R-17462 as in AB23568, registered August 17, 1966.
Subject to a right of way in favour of CNR over Part of Lot 1 Concession Broken Front, former Township of Barton designated as Parts 11, 19, 20 to 28 both inclusive on 62R-17462 as in NS178118, registered November 1, 1950.
Subject to a right of way in favour of Jarvis B. Webb Company of Canada, its successors and assigns over Part of Lots 1 and 2 Concession Broken Front, former Township of Barton designated as Part 23 on 62R-17462 as in HL23053, registered September 16, 1957 as renewed by VM260064, registered March 17, 2004.
Subject to an easement in favour of City of Hamilton over Part of Lot 1 and 2 Concession Broken Front, former Township of Barton designated as Parts 4, 5 and 6 on 62R-17462 as in HL292195, registered November 2, 1964.
Subject to a right of way in favour of Jarvis B. Webb Company of Canada Ltd. over Part of Lot 1 Concession Broken Front, former Township of Barton designated as Parts 10, 11, 12, 13 and 14 on 62R-17462 as in CD267807, registered December 20, 1983.
Subject to an Easement in favour of Union Gas Ltd. over Part of Lot 1 Concession Broken Front, former Township of Barton designated as Part 13 and 16 on 62R-17462 as in CD391982, registered December 18, 1986.
SAVE AND EXCEPT any federal real property included in the foregoing.
Document | Parties | Real Property Affected |
---|---|---|
(a) Transfer/Deed of Land dated September 26, 1994, registered September 28, 1994 as 194802VM conveying certain lands together with rights and easements relating to spur lines, water and sewer pipes, use of existing services and access. | Grantor: Case Canada Corporation |
Parts 1, 2, 3, 12, 14, 18, 19 and 21, Reference Plan 62R-13125 and Parts 7 and 10, Reference Plan 62R-8011. |
(b) Transfer/Deed of Land dated September 25, 1998, registered October 2, 1998 as 243272VM conveying certain lands together with a right relating to spur lines. | Grantor: Case Canada Corporation |
Part 21, Reference Plan 62R-13125 and Part 10, Reference Plan 62R-8011. |
(c) Lease dated September 27, 1965 as amended by a Supplementary Agreement dated February 17, 1977. | Lessor: Her Majesty the Queen represented by Minister of National Defence |
A triangular shaped parcel of H.M.C.S. Star property at the foot of Catherine Street. |
(d) Ground Lease dated November 24, 2000. | Lessor: The Corporation of the City of Hamilton Lessee: The Hamilton Harbour Commissioners | Parts 12, 13, 20, 31 to 41, both inclusive, Reference Plan 62R-15663. |
(e) Ground Lease dated November 24, 2000. | Lessor: The Corporation of the City of Hamilton Lessee: The Hamilton Harbour Commissioners | Parts 4, 5, 8, 17, 21, 45 and 50, Reference Plan 62R-15663. |
(f) Ground Lease dated November 24, 2000. | Lessor: Her Majesty the Queen in right of Canada as represented by the Minister of Canadian Heritage |
Parts 10, 11, 14, 18, 19, 46, 47 and 51, Reference Plan 62R-15663. |
PART 2 (Oshawa)
1. PIN 16378-0105 (LT), designated as Parts 1, 2 and 3 on Plan 40R-26890 in the land registration system of Ontario.
SCHEDULE D
HAMILTON-OSHAWA PORT AUTHORITY
CLASSES OF USERS
- 1. Private Docks.
- 2. Port Authority Docks and Related Businesses.
- 3. All other port users, including but not limited to labour, environmental and recreational users.
SCHEDULE E
HAMILTON-OSHAWA PORT AUTHORITY
CODE OF CONDUCT
ARTICLE 1
OBJECTS AND INTERPRETATION
1.1 Object of Code. The object of this Code is to enhance public confidence in the integrity and impartiality of directors and officers of the Authority and the business activities and transactions carried on by the Authority by establishing clear conflict of interest rules for directors and officers of the Authority.
1.2 Principles. This Code shall be interpreted in accordance with the following general principles:
- (a) every director and officer shall discharge their official duties and arrange their private affairs in such a manner as to preserve and promote public confidence and trust in the integrity and impartiality of the Authority;
- (b) the obligations of a director or officer described in subsection 1.2(a) may not always be discharged merely by acting in accordance with the technical requirements of the Act, the Regulations, the Letters Patent, the by-laws and the policies and resolutions of the Board; and
- (c) public confidence and trust in the integrity and impartiality of the Authority may be as equally compromised by the appearance of a conflict as by the existence of an actual conflict.
1.3 Definitions. In this Code, terms used herein shall have the meanings ascribed to them in the Act and the Letters Patent, and, in addition, the following terms shall have the following meanings:
- (a) “Gift” includes any good, service, benefit, hospitality, promise or favour; and
- (b) “Related Party” means with respect to a director or officer of the Authority:
- (i) a spouse, child, brother, sister or parent of such director or officer;
- (ii) a relative of such director or officer (other than a spouse, child, brother, sister or parent of such director or officer) or a relative of the spouse of such director or officer if the relative has the same residence as the director or officer;
- (iii) a corporation, partnership, trust or other entity which is directly or indirectly controlled by such director or officer or by a spouse, child, brother, sister or parent of such director or officer or any combination of such persons; and
- (iv) a partner of such director or officer acting on behalf of a partnership of which the director or officer and the partner are partners.
1.4 Application of Code. This Code applies to all directors and officers of the Authority.
1.5 Scope of Obligations. Conforming to the specific requirements of this Code shall not absolve a director or officer of responsibility for taking such additional action as may be necessary to conform with any standard of conduct or comply with any duty imposed by the Act, the Regulations, the Letters Patent, the by-laws and the policies and resolutions of the Board, or otherwise by law.
1.6 Acknowledgement by Directors and Officers. Each director and officer shall acknowledge in writing to the Board that:
- (a) they have read and understood this Code;
- (b) to the best of their knowledge they are in compliance with this Code, and neither they nor any Related Party has a conflict or a potential conflict within the meaning of article 2 of this Code; and
- (c) in the case of each officer, compliance with this Code is a condition of their employment.
1.7 Timing of Acknowledgement. Each director and officer shall deliver the acknowledgement described in section 1.6 of this Code to the Board:
- (a) with respect to the directors serving and officers employed on the date the Letters Patent take effect, forthwith upon the Letters Patent taking effect; and
- (b) with respect of all other directors, at the time of their appointment and, with respect to all other officers, at the time of the commencement of their employment.
1.8 Annual Review. Each director and officer shall regularly review their obligations under this Code and shall on the 15th day of May of each year provide the Board with a written acknowledgement confirming such review and that, to the best of the knowledge of the director or officer:
- (a) they are in compliance with this Code; and
- (b) neither they nor any Related Party has a conflict within the meaning of article 2 of this Code.
ARTICLE 2
CONFLICTS OF INTEREST
2.1 Conflicts Generally. A director or officer shall not allow his or her personal interests or the personal interests of a Related Party to conflict with or to give rise to the appearance of a conflict with the duties and responsibilities of the director or officer or the interests of the Authority.
2.2 Specific Types of Conflicts. Without restricting the generality of section 2.1, the following represent examples of specific matters which give rise to a conflict or an appearance of a conflict on the part of a director or officer:
- (a) Competition with the Authority: A director or officer or a Related Party engages in any activity, or has a material interest in any person which engages in an activity, which is or could be in competition with the present or proposed interests of the Authority;
- (b) Transactions with the Authority or a User; Material Interests: A director or officer or a Related Party:
- (i) has a material interest in a user;
- (ii) owes material obligations to the Authority or a user, other than in connection with the duties of the director or officer arising from their position with the Authority;
- (iii) conducts business with the Authority or a user; or
- (iv) holds a material interest in a corporation, partnership or other entity which conducts business with, or acts as a consultant or advisor to, the Authority or a user;
- (c) Interest in Material Contract: A director or officer:
- (i) is a party to a material contract or proposed material contract with the Authority; or
- (ii) is a director or officer of or has a material interest in any person who is a party to a material contract or proposed material contract with the Authority; and
- (d) Acceptance of Offices with Conflicted Entities: A director or officer accepts an appointment or a nomination for election to an office of, or employment with, any corporation, partnership, foundation, institute, organization, association or other entity, the business or activities of which are or could be in conflict with the interests of the Authority.
2.3 Conflicts For Which Approval Satisfactory. Engaging in the following activities shall be deemed not to give rise to a conflict or the appearance of a conflict on the part of a director or officer within the meaning of article 2 of this Code provided that the director or officer obtains the written approval of the Board prior to engaging in such activities:
- (a) Acceptance of Offices With Entities Benefiting From Authority: A director or officer accepts an appointment or a nomination for election to an office of, or employment with, any corporation, partnership, foundation, institute, organization, association or entity, the business or activities of which benefit or could reasonably be expected to benefit from the business of the Authority or decisions made by the Authority; and
- (b) Use of Authority Property: A director or officer uses property held or managed by the Authority for the personal benefit of the director or officer or a Related Party.
If a director or officer fails to obtain the written approval of the Board prior to engaging in any activity described in subsections (a) or (b) of this section, the engagement of the director or officer in such activity shall be deemed to give rise to a conflict of interest within the meaning of article 2 of this Code.
ARTICLE 3
DISCLOSURE OF CONFLICTS
3.1 Timing of Disclosure. Written disclosure of a conflict or an appearance of a conflict shall be made by a director or officer forthwith after the director or officer becomes aware of the conflict or the appearance of a conflict within the meaning of article 2 of this Code.
3.2 Declaration of Interest. For the purposes of this Code, a notice in writing to the Board by a director or officer providing reasonable particulars of the interest, asset, activity or position giving rise to a conflict or the appearance of a conflict together with such other material information relating to the conflict or the appearance of a conflict as shall be reasonably requested by the Board shall be deemed to be disclosure of the conflict or the appearance of a conflict.
3.3 Voting and Participation. A director or officer who is in conflict within the meaning of article 2 of this Code shall not participate in discussions or vote on any decision of, or provide recommendations to, the Board on any matter related to the conflict. Notwithstanding the foregoing, a director or officer may participate in, vote on and provide recommendations to the Board respecting any matter related to:
- (a) an arrangement by way of security for money lent to, or obligations undertaken by the director or officer for the benefit of, the Authority;
- (b) a contract that relates primarily to his or her remuneration as a director, officer, employee or agent of the Authority; and
- (c) a contract for indemnity, in favour of the director or officer or directors’ or officers’ liability insurance.
3.4 Quorum of Directors’ Meetings. Nothing contained in section 3.3 shall preclude a director or officer who is in conflict within the meaning of article 2 of this Code from being counted to determine the presence of a quorum at a meeting of the directors or committee of directors of the Authority where all or a portion of the business conducted at such meeting is consideration of the transaction or matter giving rise to the conflict, the interpretation of this Code or a determination or recommendation made pursuant to article 4 of this Code. Notwithstanding the foregoing, a director or officer who is in conflict shall absent himself or herself from the meeting for the portion of the meeting during which the transaction or matter giving rise to the conflict is considered.
3.5 Similar Transactions. In the case of similar transactions that are, or are likely to be, of a recurring nature and which are made or will be made in the ordinary course of the operations of the Authority, a director or officer who is in conflict as a result of such transactions shall be deemed to have complied with the disclosure requirements of this article 3 if:
- (a) in the case of the directors serving or officers employed on the date the Letters Patent take effect, forthwith upon the Letters Patent taking effect; and
- (b) in the case of all directors or officers, including the directors and officers described in subsection 3.5(a), on or before the 15th day of May of each year for which such disclosure relates,
the director or officer makes a single annual written disclosure to the Board setting out the nature and extent of the conflict arising as a result of the transactions together with such other information as shall reasonably be requested by the Board.
ARTICLE 4
COMPLIANCE
4.1 Voluntary Activities. When a conflict arises within the meaning of article 2 of this Code, in addition to the disclosure required under article 3 of this Code, a director or officer may voluntarily undertake one or more of the following actions to address the conflict:
- (a) Divestment: selling or causing the sale of the asset or interest giving rise to the conflict to a party which is not a Related Party;
- (b) Withdrawal: resigning the position or withdrawing from the activity or causing the resignation or withdrawal; or
- (c) Resignation: resigning where the director or officer is unwilling or unable to divest the asset or interest, withdraw from the activity or resign from the position giving rise to the conflict.
4.2 Voluntary Compliance Not Determinative. Voluntary compliance by a director or officer with one or more of the measures described in section 4.1:
- (a) in the case of a director, shall not relieve the director from complying with such other measures as may be determined by the entity appointing the director to be appropriate in connection with a conflict or an appearance of conflict; and
- (b) in the case of an officer, shall not relieve the officer from complying with such other measures as may be determined by the Board to be appropriate in connection with a conflict or an appearance of conflict.
4.3 Determination by Board. Where a disclosure is made to the Board by a director or officer pursuant to article 3 of this Code or facts are brought to the attention of the Board which indicate a conflict or appearance of conflict or failure to comply with this Code by a director or officer, the Board shall forthwith determine:
- (a) whether the director or officer is in a conflict within the meaning of article 2 of this Code;
- (b) whether the director or officer has failed to comply with this Code;
- (c) whether the conflict has been or will be satisfactorily addressed through:
- (i) disclosure by the director or officer;
- (ii) the director or officer’s undertaking one or more of the actions described in section 4.1; or
- (iii) the director or officer undertaking actions other than as described in paragraphs 4.3(c)(i) and (ii);
- (d) in the case of an officer, the measures to be taken by the officer to address the conflict and any sanctions to be imposed upon the officer in connection with a failure by the officer to comply with this Code; and
- (e) in the case of a director, whether to request the director to resign.
4.4 Opportunity to be Heard. The Board shall provide a director or officer with an opportunity to be heard in connection with a determination made pursuant to section 4.3.
4.5 Notification of Determination Respecting Officer. Upon the Board’s making a determination pursuant to section 4.3 in respect of an officer, the Board shall forthwith provide the officer with written notification of the determination, including the reasons therefor, together with any direction of the Board to be complied with by the officer.
4.6 Notification of Determination Respecting Director. Where the Board has determined that a director has failed to comply with this Code, the Board shall forthwith provide the entity which has appointed such director to the Board with written notification of the failure to comply along with full particulars of the circumstances giving rise thereto.
ARTICLE 5
ACCEPTANCE OR OFFERING OF GIFTS
5.1 Acceptance or Offering of Gifts. No director or officer shall offer Gifts to, or accept Gifts from, users or potential users without the prior written consent of the Board. Notwithstanding the foregoing, Gifts may be accepted or offered provided that:
- (a) the Gift is not in the form of cash or cash equivalent;
- (b) the Gift is neither in such form nor of sufficient value such that it could reasonably be construed to be a bribe or other improper payment; and
- (c) the Gift is of modest value and the acceptance of the Gift is in accordance with customary business practice.
ARTICLE 6
INSIDE INFORMATION
6.1 Use of Information. A director or officer shall not use any information obtained in connection with his or her position with the Authority for personal benefit or for the benefit of any other person unless such information has been disclosed to the public or made available to the public. Without limiting the generality of the foregoing, a director or officer who has knowledge of a proposed action or decision by the Authority shall not purchase or sell assets, or advise any other party to purchase or sell assets, the value of which could be expected to be materially affected by the proposed action or decision until such time as the proposed action or decision has been announced or has been made available to the public.
6.2 Disclosure of Confidential Information. Subject to section 6.3, no director or officer shall disclose any information concerning the business and affairs or proposed business and affairs of the Authority acquired in connection with his or her position with the Authority (“Confidential Information”) which has not been disclosed to the public or been made available to the public without the prior written consent of the Board.
6.3 Permitted Disclosures. A director or officer may disclose Confidential Information:
- (a) to the extent that the disclosure is reasonably necessary in connection with the performance of the duties and responsibilities of the director or officer, including disclosures necessary in connection with a financing transaction or proposed financing transaction involving the Authority;
- (b) to the extent disclosure is required by law (including Access to Information Act (Canada) and Privacy Act (Canada) requirements) or by a court or tribunal of competent jurisdiction; and
- (c) to professional advisors of the Authority.
ARTICLE 7
OUTSIDE EMPLOYMENT
7.1 Offers of Employment or Appointment. In discharging his or her duties and responsibilities to the Authority, a director or officer shall not allow the performance of such duties and responsibilities to be affected by offers or potential offers of outside employment or appointment.
7.2 Disclosure of Offer. A director or officer who receives a firm offer of employment or appointment which may affect the performance of the director’s or officer’s duties or responsibilities shall forthwith disclose the offer to the Board in writing.
ARTICLE 8
RECORDS OF PRIVACY
8.1 Confidentiality Obligation. Information concerning the interests or activities or proposed interests or activities of a director or officer provided to the Board in connection with the disclosure obligations of this Code or otherwise obtained by the Board shall be placed in separate personal files and kept in secure safekeeping.
8.2 Privacy. Subject to disclosure of personal information in accordance with law (including disclosure under the Access to Information Act (Canada) and Privacy Act (Canada)), in addition to the confidentiality obligations set forth in section 8.1, the Board shall make all reasonable efforts to ensure that the privacy of the director or officer disclosing personal information to the Board is fully respected.