2002 Legislative Session: 3rd Session, 37th Parliament
FIRST READING
The following electronic version is for informational
purposes only.
The printed version remains the official version.
HONOURABLE JUDITH REID
MINISTER OF TRANSPORTATION
Contents
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Section |
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Provisions of concession agreement respecting breaches not punitive |
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Rights, powers and obligations of minister and concessionaire |
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HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
1 In this Act:
"agent", when used in relation to the government, does not include a concessionaire or the billing organization or any person employed by or under contract to the concessionaire or billing organization;
"arbitrator" means a person appointed by the minister under section 15;
"billing organization" means the organization referred to in section 4 (a);
"common highway" means a highway that is not a concession highway;
"concession agreement" means an agreement referred to in section 2 (1), and includes all related agreements that are, in the agreement referred to in section 2 (1), specified as forming part of the concession agreement, and,
(a) when used in relation to a concessionaire, means the agreement, including the specified related agreements, under which that person is a concessionaire, and
(b) when used in relation to a concession highway, means the agreement, including the specified related agreements, contemplated by this Act under which interests or rights in that concession highway are transferred or granted or obligations in relation to that concession highway are imposed;
"concession highway" means the highway or portion of a highway, or the highways or portions of highways, in relation to which interests or rights are transferred or granted or obligations are imposed under a concession agreement, and,
(a) when used in relation to a concessionaire, means the highway or portion of highway, or the highways or portions of highways, in relation to which that person is a concessionaire, and
(b) when used in relation to a concession agreement, means the highway or portion of highway, or the highways or portions of highways, in relation to which interests, rights or obligations are transferred, granted or imposed under that concession agreement,
and includes expansions or extensions of the highway or portion of highway or of the highways or portions of highways;
"concessionaire" means a person who, under a valid and subsisting concession agreement, holds the interests, rights and obligations that the minister has, by that concession agreement, agreed to transfer, grant or impose;
"due date", in relation to a toll, means the day prescribed as the day by which the toll must be paid;
"excessive toll debt" means a toll debt of not less than the prescribed amount;
"expand" includes
(a) add or expand lanes,
(b) add or expand interchanges,
(c) add or expand tunnels, bridges, walls and other structures, and
(d) make other improvements;
"extend" includes construct linear additions;
"highway" includes
(a) subject to paragraph (c), every highway within the meaning of the Highway Act,
(b) every road, street, lane or right of way not referred to in paragraph (a) that is designed or intended for or used by the general public for the passage of vehicles, and
(c) ferries and ferry landings that are owned or operated by or on behalf of the government, except those that are
(i) part of the British Columbia Ferry Corporation,
(ii) coastal ferries other than those coastal ferries designated by the Lieutenant Governor in Council, and
(iii) part of the regional transportation system as defined in the Greater Vancouver Transportation Authority Act;
"maintain" includes keep in repair;
"number plate" has the same meaning as in the Motor Vehicle Act;
"person" has the same meaning as in the Interpretation Act and includes a joint venture;
"toll" means a charge for the use of some or all of a concession highway by a vehicle;
"toll debt", in relation to a person who has been charged a toll by a concessionaire or the billing organization, means,
(a) subject to paragraphs (b) and (c), the portion of the toll that remains unpaid after the expiry of the period within which the person's liability for the toll may be disputed under section 20, plus any interest or other charges payable in relation to that amount,
(b) subject to paragraph (c), if the person disputes the person's liability for a toll or any related interest or charges in accordance with the prescribed dispute resolution procedure, the amount that
(i) is, under that procedure, determined or deemed to be owing by the person to the concessionaire or billing organization, or
(ii) the parties to the dispute resolution procedure agree is owing by the person to the concessionaire or billing organization, or
(c) if the person disputes the person's liability for a toll or any related interest or charges in accordance with the prescribed appeal procedure, the amount that is, under that procedure, determined by the arbitrator to be owing by the person to the concessionaire or billing organization;
"toll device" means a device that
(a) may be installed or carried in or on, or attached to, a vehicle, and
(b) allows electronic identification of the person who is to pay the toll, or the account from which the toll is paid, arising from the vehicle's use of a concession highway;
"toll reader" means equipment that detects toll devices;
"upgrade", in relation to a highway, includes improve the design, quality, durability, safety, operation or capacity of the highway;
"vehicle" has the same meaning as "motor vehicle" in the Motor Vehicle Act.
Part 2 -- Public-Private Partnerships for Highways
2 (1) The minister may, with the approval of the Lieutenant Governor in Council, enter into one or more agreements under which
(a) the minister agrees, on behalf of the government, to transfer or grant to the person with whom the agreement is entered into one or more of the following:
(i) interests in, or rights or obligations relating to, land that is, or is to be, part of a concession highway;
(ii) interests in or rights to buildings, bridges, walls, tunnels, culverts, wires, pipes and other things used for the construction, operation, safety, protection, servicing or maintenance of, or to provide services to persons using, the highway referred to in subparagraph (i);
(iii) shares in any corporation that operates all or any portion of the highway that is, or is to be, the concession highway, or interests in those shares;
(iv) other interests in, or rights or obligations relating to, the highway referred to in subparagraph (i),
(b) the person undertakes to maintain and operate all or part of the highway referred to in paragraph (a) (i), and
(c) the person may undertake to do one or more of develop, plan, design, construct, expand, extend, upgrade, remove and rehabilitate all or part of the highway referred to in paragraph (a) (i).
(2) Nothing in a concession agreement affects any rights, interests or permits of persons who hold any rights or interests in or any permits relating to any land that forms or is to form part of the concession highway.
(3) Despite subsection (1), a concession agreement must not transfer a fee simple interest in any land that forms or is to form part of the concession highway.
(4) Nothing in subsection (3) prevents the concession agreement from transferring title to, or any interests in, improvements or fixtures on any land referred to in subsection (3).
3 A concession agreement must
(a) specify the consideration to be provided by the concessionaire to the government for the interests transferred, and the rights granted, to the concessionaire under the concession agreement, and specify how and when that consideration is to be provided,
(b) identify any things in which interests are transferred, or in respect of which rights are granted, to the concessionaire under the concession agreement,
(c) state whether or not tolls may be charged for vehicular use of the concession highway and, if so, how those tolls are to be set and varied from time to time,
(d) set out obligations of the concessionaire relating to the concession highway, which obligations may include but are not limited to obligations to develop, finance, plan, design, construct, expand, extend, upgrade, remove, maintain, rehabilitate and operate all or part of the concession highway,
(e) specify the powers, permits, approvals and other authorizations that are granted to the concessionaire by the government under the concession agreement,
(f) require the concessionaire, when performing the concessionaire's obligations or exercising the concessionaire's rights in relation to the concession highway, to meet or exceed the standards applicable to a comparable public highway, or, if higher standards are referred to in the concession agreement, meet or exceed those specified standards, including, without limiting this, design, construction, safety, maintenance and signage standards,
(g) require that the concessionaire not close the concession highway except for so long as, and to the extent that,
(i) closure is necessary to permit maintenance or construction,
(ii) closure is necessary for public safety, or
(iii) closure is required by the minister under the Highway Act or the Ministry of Transportation and Highways Act,
(h) provide for the manner, if any, in which the concessionaire is to be compensated for any loss that the concessionaire suffers as a result of the exercise by the government of any of its rights to
(i) require closure of the concession highway,
(ii) access any land that forms part of the concession highway, or
(iii) carry out any activity or construct anything on, under or over any land that forms part of the concession highway,
(i) require the concessionaire to contribute, in the manner and to the extent contemplated by the concession agreement, to
(i) the cost of arbitrators, and
(ii) the cost of appeals under section 21,
(j) set out the respective rights and responsibilities of the government and the concessionaire in relation to those places where the concession highway intersects or abuts any common highway, and the respective rights and responsibilities of concessionaires in relation to those places where their respective concession highways intersect or abut,
(k) set out any reporting and public information requirements and any record retention requirements that the concessionaire must meet, and specify the records or classes of records, if any, respecting the maintenance or safety of the concession highway that the concessionaire must, on request, make available to the minister,
(l) stipulate the condition in which any things in which interests are transferred, or in respect of which rights are granted, to the concessionaire under the concession agreement must be returned at the end of the concession agreement, and
(m) stipulate the requirements for insurance, bonds, including performance bonds and labour and material payment bonds, securities, indemnities and guarantees that the concessionaire must provide in connection with the concession highway.
4 A concession agreement may include any other provisions that the parties consider appropriate and, without limiting this, the minister may, in a concession agreement,
(a) authorize or require the concessionaire to establish or use a billing organization to do one or both of invoice and collect tolls that are charged as a result of the detection of toll devices or the reading of number plates on the concession highway,
(b) authorize or require the concessionaire to accept payment of a toll by an occupant of a vehicle at the time of the vehicle's use of the concession highway, or
(c) authorize or require the concessionaire to exempt from tolls specified vehicles or specified classes of vehicles.
5 A provision in a concession agreement that stipulates a drawback or penalty for failure to perform a condition of the concession agreement or to fulfil a covenant or promise in the concession agreement must not be construed as punitive, but as importing an assessment by mutual consent of the damages caused by the failure.
6 (1) Without limiting section 8, the minister and ministry have, in relation to concession highways, all of the rights and powers that the minister and ministry respectively have in relation to common highways.
(2) Nothing in subsection (1) of this section requires the government to take any action or provide any money for or in relation to any matter relating to a concession highway.
(3) Subject to subsection (5), if, in law or under any enactment, the minister is provided with rights, powers or functions, the minister may, in a concession agreement, delegate to the concessionaire any or all of those rights, powers or functions as they relate to the concession highway and, in that event, the concessionaire is entitled to exercise those rights, powers or functions in relation to the concession highway during the currency of the concession agreement, subject to any limits or conditions imposed by the minister in relation to that delegation.
(4) Subject to subsection (5), if, in law or under any enactment, obligations are imposed on the minister, the minister may, in a concession agreement, impose any or all of those obligations as they relate to the concession highway on the concessionaire and, in that event,
(a) the minister is relieved from those obligations in relation to the concession highway, and
(b) the concessionaire must perform those obligations in relation to the concession highway.
(5) The minister must not delegate to the concessionaire any rights, powers or functions available to the minister under, and must not impose on the concessionaire any obligations of the minister under, the Freedom of Information and Protection of Privacy Act or section 25 of this Act unless the minister is authorized to do so by regulation of the Lieutenant Governor in Council.
(6) Without limiting subsection (4) of this section, a concessionaire
(a) has, in relation to the concession highway, the same duty of care that the minister would have were that highway a common highway,
(b) must maintain and operate the concession highway, and
(c) must, if the concessionaire constructs, expands, extends or upgrades the whole or any portion of the concession highway, develop, plan and design the construction, expansion, extension or upgrade.
(7) Without limiting any other liability a concessionaire may be subject to at law or under an enactment, if the concessionaire defaults in performing any of the concessionaire's obligations under subsections (4) and (6), the concessionaire is liable for any loss or damage sustained by any person by reason of the default.
7 (1) If, for the purposes of a concession agreement, the concessionaire considers it necessary to
(a) acquire, enter on, pass over or use any land,
(b) alter any feature of land,
(c) construct, relocate, remove or use roads on, to or from land, or
(d) place on, alter or remove from land any substance or structure,
and is unable to obtain the agreement of the owner of the land within a reasonable time and on reasonable terms, the concessionaire may refer the matter to the minister.
(2) If the minister is satisfied that the action under subsection (1) proposed by the concessionaire is reasonable and necessary for the carrying out of the concession agreement, the minister may
(a) take the proposed action, including, without limiting this, expropriate any land, or
(b) take any other action, mutually agreed between the minister and the concessionaire, that the minister has power to take under one or both of the Highway Act and the Ministry of Transportation and Highways Act.
8 (1) Despite any law to the contrary and despite any enactment, neither the government nor any employee, agent, minister or ministry of the government has
(a) any duty to develop, plan, design or construct any portion of a concession highway that, under a concession agreement, the concessionaire is to construct,
(b) any duty to expand, extend, upgrade, remove, maintain, rehabilitate, operate, close or require the closure of a concession highway,
(c) any duty to instruct or supervise a concessionaire or the billing organization, and
(d) any duty of care with respect to any development, planning, design, construction, expansion, extension, upgrading, removal, maintenance, rehabilitation, operation or closure of, or any other activity in relation to, a concession highway that, after the concession agreement takes effect, is
(i) done by any person other than the government or any employee, agent, minister or ministry of the government, or
(ii) omitted to be done.
(2) Without limiting subsection (1), neither the government nor any employee, agent, minister or ministry of the government has any liability arising by operation of law in relation to anything done or omitted to be done on or in relation to the concession highway after the concession agreement takes effect, including, without limiting this, any liability in an action based on
(a) nuisance,
(b) the rule in Rylands v. Fletcher, or
(c) non-delegable duty.
(3) Subject to subsection (4), no legal proceeding for damages or compensation of any kind lies or may be commenced or maintained against the government or any employee, agent, minister or ministry of the government in respect of the failure by the government, or by any employee, agent, minister or ministry of the government, to take any action in connection with the concession agreement or in connection with or against the concessionaire or the billing organization, including, without limiting this, the failure to take any action to terminate the concession agreement or any or all of the interests, rights, powers, permits, approvals and authorizations transferred or granted under the concession agreement, if the concessionaire or billing organization breaches any provision of this Act, the regulations, the concession agreement or any other agreement to which the government is a party.
(4) Subsection (3) does not apply to the government or any employee, agent, minister or ministry of the government if the failure referred to in subsection (3) is in bad faith.
(5) Despite any law to the contrary and despite any enactment, no damages or compensation of any kind is payable by the government or by any employee, agent, minister or ministry of the government in respect of, and no legal proceeding for damages or compensation of any kind lies or may be commenced or maintained against the government or any employee, agent, minister or ministry of the government in respect of,
(a) a highway becoming a concession highway, or
(b) after a highway becomes a concession highway, anything that is done by any person other than the government or an employee, agent, minister or ministry of the government in connection with the concession highway, or that is omitted to be done in connection with the concession highway, including, without limiting this, any development, planning, design, construction, expansion, extension, upgrading, removal, maintenance, rehabilitation, operation or closure of, or failing to close, the concession highway.
(6) A concessionaire that is an occupier of a concession highway has the same liability, if any, under the Occupiers Liability Act in respect of that highway as would the government were the government the occupier of that highway.
9 At any time, the minister may, after giving reasonable notice to a concessionaire or the billing organization, require that the accounts and other records of the concessionaire or billing organization, as the case may be, that relate to any of the following be audited by an auditor satisfactory to the minister:
(a) the charging or collection of tolls;
(b) the collection, use and disclosure by the concessionaire or billing organization of personal information collected under section 25 (2) (a), (b), (c) or (d);
(c) any other rights or obligations of the concessionaire under the concession agreement, this Act or the regulations.
10 (1) If a concession agreement is terminated,
(a) all of the interests, rights and shares transferred or granted to the concessionaire under the concession agreement, this Act or the regulations vest in the government, and
(b) the concessionaire ceases to have any of the interests, rights and shares transferred or granted to the concessionaire under the concession agreement, this Act or the regulations.
(2) Nothing in subsection (1) (a) prevents the government from transferring or granting to another person, under this Act or otherwise, any or all of the interests, rights and shares that vest in the government under that subsection.
11 (1) Subject to subsections (2) and (3), the public has the same right to access and use a concession highway as it does to access and use a common highway.
(2) The concessionaire may close the whole or any portion of the concession highway if, and only for the period and to the extent that,
(a) closure is necessary to permit maintenance or construction, or
(b) closure is necessary for public safety.
(3) The concessionaire must close the whole or any portion of the concession highway when and to the extent that closure is required by the minister under the Highway Act or the Ministry of Transportation and Highways Act.
(4) Nothing in subsection (1) removes from the public the obligation to pay any toll validly charged in relation to a concession highway.
12 (1) A concessionaire must not close or divert any part of a concession highway that gives access to or egress from a highway
(a) except for so long as, and to the extent that,
(i) the closure or diversion is necessary to permit maintenance or construction,
(ii) the closure or diversion is necessary for public safety, or
(iii) the closure or diversion is required by the minister under the Highway Act or the Ministry of Transportation and Highways Act, or
(b) unless the concessionaire first obtains the consent of the government or, if the other highway is operated by a local government or another body, the consent of that local government or other body, which consent must not be unreasonably withheld.
(2) If a common highway is operated by the government, a local government or another body, that body must not close or divert any part of that highway that gives access to or egress from a concession highway
(a) except for so long as, and to the extent that,
(i) the closure or diversion is necessary to permit maintenance or construction, or
(ii) the closure or diversion is necessary for public safety, or
(b) unless the body first obtains the consent of the concessionaire, which consent must not be unreasonably withheld.
13 (1) Unless the concession agreement provides otherwise, if the concession highway intersects any part of a common highway, the concession highway continues without interruption.
(2) If a concession highway intersects any part of a common highway, the concessionaire must not impede or otherwise restrict access to or use of the intersection other than for safety or traffic control purposes, and neither the concessionaire nor the billing organization may charge a toll in relation to the use by any person or vehicle of the intersection.
14 (1) In this section, "travelled portion", in relation to a concession highway, means the portion of the concession highway that is primarily intended for the linear movement of vehicles.
(2) The following portions of the concession highway constitute a highway for the purposes of the Assessment Act:
(a) the travelled portion of the concession highway;
(b) any land adjoining the travelled portion of the concession highway that is necessary for the safe and efficient use of that travelled portion;
(c) those portions of the concession highway that are used exclusively or almost exclusively for one or more of the following:
(i) the assessment of tolls;
(ii) the collection of tolls;
(iii) a prescribed purpose.
15 (1) For the purposes of this Part, the minister must appoint one or more persons as arbitrators to serve for a term of 3 years.
(2) The minister must appoint, as arbitrators under this section, persons who are independent from all concessionaires and the billing organization.
16 (1) If a concession agreement authorizes the charging of tolls, the following may occur in the manner and to the extent provided by the concession agreement:
(a) tolls may be charged for vehicular use of the concession highway, which tolls may differ in relation to
(i) the class of vehicle to which the vehicle using the concession highway belongs,
(ii) the extent, date or time of that use,
(iii) whether a toll device is detected, or not detected, in or on the vehicle, or
(iv) any other criteria considered by the concessionaire to be appropriate;
(b) tolls may be set and varied from time to time;
(c) interest and other charges may be charged in relation to tolls that are not paid by their due date.
(2) The rate of interest that may be charged on a toll that is not paid by its due date, and the amount of any other charge related to a toll or its collection, must not exceed the rate and amount set by the regulations.
17 (1) Any toll that may be charged in relation to the use by a vehicle of a concession highway may, unless the toll has been paid in accordance with subsection (3),
(a) if a toll reader detects a toll device in or on the vehicle and there is, in relation to that toll device, an account established with the concessionaire or the billing organization in which there are sufficient funds to pay the required toll, be deducted from that account,
(b) subject to paragraph (c), if a toll reader for the concession highway detects a toll device in or on the vehicle that is not one referred to in paragraph (a), be invoiced to the person to whom the toll device was issued,
(c) if a toll reader for the concession highway detects, in or on the vehicle, a toll device that is of a type applicable to, or is coded or programmed for, a vehicle of a certain class and the vehicle in or on which the toll device is detected does not belong to that class, be invoiced to the person to whom the number plate on the vehicle was issued, or
(d) if a toll reader for the concession highway does not detect a toll device in or on the vehicle, be invoiced to the person to whom the number plate on the vehicle was issued.
(2) If an invoice for a toll is issued by the concessionaire or the billing organization to a person to whom an invoice for the toll may be issued under subsection (1) (b), (c) or (d), that person is indebted to the concessionaire or billing organization, as the case may be, for the toll, and any interest or other charges payable in relation to it, unless
(a) the person disputes liability in accordance with the prescribed dispute resolution procedure and the concessionaire or billing organization, as the case may be, does not provide notice, in the time and manner required by that procedure, of their disagreement with the dispute, or
(b) the person appeals a demand in accordance with the prescribed appeal procedure and is found by the arbitrator to have no liability for the toll.
(3) Unless the concession agreement provides otherwise, the concessionaire may provide, or, if required to do so under the concession agreement, must provide, for payment of a toll by an occupant of a vehicle at the time of the vehicle's use of the concession highway.
18 An invoice relating to one or more tolls being charged to a person must include, for each toll referred to in the invoice,
(a) a statement as to whether the person was identified as being liable for the toll by the detection of a toll device or by the reading of a number plate,
(b) the date, time and location at which the device was detected or the plate was read, and
(c) any other information required by the regulations.
19 (1) No toll is payable in relation to the access to, or use of, a concession highway by any of the following:
(a) emergency vehicles within the meaning of the Motor Vehicle Act;
(b) prescribed persons or vehicles engaged in the provision of other emergency services.
(2) In addition to subsection (1), no toll is payable by a person if
(a) the toll was attributed to the person by virtue of the detection of the person's toll device and, at the date and time for which the toll is being charged, the toll device issued to the person was not in or on a vehicle using the concession highway,
(b) the toll was attributed to the person by virtue of the reading of the person's number plate and, at the date and time for which the toll is being charged, the number plate issued to the person was not on a vehicle using the concession highway,
(c) the toll was attributed to the person by virtue of the detection of the person's toll device or the reading of the person's number plate and, at the date and time for which the toll is being charged, the person's toll device or number plate, as the case may be, or the vehicle in or on which it was located was stolen, or
(d) the toll was improperly charged within the meaning of the regulations.
20 A person who has received an invoice for a toll in relation to a concession highway may, on one or more of the grounds referred to in section 19, dispute that person's liability for the toll and for any related interest or other charges in accordance with the prescribed dispute resolution procedure.
21 (1) A person who has disputed the person's liability for a toll in accordance with the prescribed dispute resolution procedure and who is not satisfied with the outcome of that procedure may, on one or more of the grounds referred to in section 19, appeal the person's liability for that toll to an arbitrator in accordance with the prescribed appeal procedure.
(2) On an appeal under this section, the arbitrator may make any order the arbitrator considers appropriate including, without limiting this,
(a) an order that the person to whom the invoice was issued is liable to pay none, some or all of the amount invoiced, and
(b) an order that the concessionaire or billing organization repay to the person to whom the invoice was issued some or all of the money provided by that person to the concessionaire or billing organization.
(3) The decision of an arbitrator under the prescribed appeal procedure is binding on the parties and may not be appealed to any court.
22 (1) The payment of some or all of a toll for which an invoice was issued under this Part and related fees and interest does not prejudice the right of the person who received the invoice to dispute or appeal the liability for, or an alleged failure to pay, the toll, fees and interest referred to in the invoice.
(2) If a person's account is debited under section 17 (1) (a) in relation to a toll,
(a) the person is, for the purposes of sections 20 and 21 and subsection (1) of this section, deemed to have received an invoice in relation to the amount deducted from that account, and
(b) the concessionaire must, on the request of that person, issue to that person an invoice, marked as paid, for that deducted amount.
(3) Section 18 applies to an invoice issued under subsection (2) (b) of this section.
23 (1) Subject to subsection (2) but despite any other provision of this Act or the regulations, if a person is indebted, within the meaning of section 17 (2), to a concessionaire or the billing organization for a toll debt, the concessionaire or billing organization may, with or without a hearing or refunding any money paid for the toll device, cancel the toll device of the debtor.
(2) The concessionaire or billing organization must not exercise a right referred to in subsection (1) unless
(a) the concessionaire or billing organization provides to the debtor, in accordance with the provisions of the agreement by which the concessionaire or billing organization provided the toll device to the debtor, a written demand for payment of the debtor's toll debt together with a notice of any action the concessionaire or billing organization intends to take under this section, and
(b) the debtor does not, within 30 days after the date of the provision of the notice, pay the toll debt or make arrangements satisfactory to the concessionaire or billing organization for its payment.
24 The rights and remedies available to a concessionaire or the billing organization under this Act or the regulations for the collection of a toll debt are in addition to any other rights and remedies available to the concessionaire or billing organization at law for the collection of that debt.
25 (1) In this section:
"law enforcement" means
(a) policing, including criminal intelligence operations,
(b) investigations that lead or could lead to a penalty or sanction being imposed, or
(c) proceedings that lead or could lead to a penalty or sanction being imposed;
"personal information" means recorded information about an identifiable individual.
(2) A concessionaire or the billing organization must not, through the exercise of any rights or powers provided to the concessionaire or billing organization under this Act, the concession agreement or any agreement between the concessionaire and the billing organization respecting the concession highway or through any activity conducted, or any device used, in conjunction with the operation of the concession highway or the assessment or collection of tolls, collect personal information in relation to individuals who are or are to be users of the concession highway unless the personal information
(a) is collected directly from, and with the express consent of, the individuals to whom the information relates,
(b) is collected for the purpose of ensuring safety in relation to the operation of the concession highway,
(c) is collected for the purpose of assessing or collecting tolls relating to the concession highway or any related interest or charges, and notice of that collection is provided, in accordance with the regulations, to the individuals to whom the information relates, or
(d) is provided under subsection (4) or (5).
(3) A concessionaire or the billing organization must not use or disclose personal information unless,
(a) in the case of personal information collected under subsection (2) (a), the use or disclosure is that for which the consent was given, or
(b) in the case of personal information collected under subsection (2) (a), (b), (c) or (d), the use or disclosure is
(i) for the purpose of ensuring safety in relation to the operation of the concession highway,
(ii) for the purpose of assessing or collecting tolls relating to the concession highway or any related interest or charges,
(iii) for the purpose of court proceedings relating to this Act,
(iv) for the purpose of assisting a public body or a law enforcement agency in Canada in an investigation
(A) undertaken with a view to a law enforcement proceeding, or
(B) from which a law enforcement proceeding is likely to result,
(v) related to the operation of a concession highway and authorized by the applicable concession agreement, or
(vi) in accordance with an enactment of British Columbia or Canada that authorizes or requires its disclosure.
(4) The Insurance Corporation of British Columbia may enter into information-sharing agreements with any or all of the minister, concessionaires and the billing organization under which the Insurance Corporation of British Columbia may disclose to the minister, the concessionaire or the billing organization, as the case may be, the full name of, and the most recent mailing address shown in the records of the Insurance Corporation of British Columbia for, individuals to whom toll devices or number plates were issued if that information is disclosed for the purpose of
(a) ensuring safety in relation to the operation of the concession highway, or
(b) the charging or collection of tolls and related interest or charges.
(5) The minister may, for the purposes set out in subsection (6), enter into an information-sharing agreement with
(a) the government of Canada or an agency of that government,
(b) the government of a province or other jurisdiction in Canada or an agency of that government,
(c) the government of a state of the United States or an agency of that government,
(d) the Insurance Corporation of British Columbia, or
(e) a concessionaire or the billing organization.
(6) Without limiting any other power the minister may have to collect, use or disclose personal information, the minister may, under an information-sharing agreement referred to in subsection (5), obtain and disclose information respecting the full names and mailing addresses of individuals to whom tolling devices or number plates were issued if that information is for the purpose of
(a) ensuring safety in relation to the operation of a concession highway or the operation of a tolled highway in another jurisdiction,
(b) assisting a public body or a law enforcement agency in Canada in an investigation
(i) undertaken with a view to a law enforcement proceeding, or
(ii) from which a law enforcement proceeding is likely to result,
(c) the operation of a concession highway or the operation of a tolled highway in another jurisdiction, or
(d) the charging or collection of tolls on a concession highway or the charging or collection of comparable charges on a tolled highway in another jurisdiction.
(7) If a concessionaire or the billing organization has obtained personal information about an individual,
(a) the concessionaire or billing organization must, promptly after receiving a request from that individual and without charge, provide that individual with access to that personal information, and
(b) section 29 of the Freedom of Information and Protection of Privacy Act applies and, for that purpose, a reference in that section to the head of the public body is deemed to be a reference to the concessionaire or billing organization, as the case may be.
(8) Without limiting any other provision of this section, a concessionaire must protect personal information by making reasonable security arrangements against such risks as unauthorized access, collection, use, disclosure or disposal.
26 A record under this Act purporting to have been signed by the minister, or a certified copy of such a record, is receivable in evidence in any prosecution or other proceeding to prove that the document is signed by the minister, without proof of the office or signature of the minister.
27 Section 5 of the Offence Act does not apply to this Act or the regulations.
28 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:
(a) respecting due dates for unpaid tolls;
(b) respecting information that must be included in invoices referred to in Part 4;
(c) establishing the amount of toll debt that constitutes an excessive toll debt;
(d) respecting the dispute resolution procedure contemplated by section 20;
(e) respecting the appeal procedure contemplated by section 21;
(f) prescribing circumstances in which a toll is improperly charged;
(g) setting the maximum interest rate that may apply to overdue tolls and establishing limits on other charges a concessionaire or the billing organization may impose in relation to tolls;
(h) respecting any matters that, in the opinion of the Lieutenant Governor in Council, are necessary to carry out the purposes of this Act.
29 Section 1.1 (a) of the Builders Lien Act, S.B.C. 1997, c. 45, is amended by adding "a concessionaire as defined by the Transportation Investment Act," after "Minister of Transportation and Highways,".
30 Section 1 of the Highway Act, R.S.B.C. 1996, c. 188, is amended by adding the following definition:
"concession agreement", "concession highway" and "concessionaire" have the same meaning as in the Transportation Investment Act; .
31 Section 9 is repealed and the following substituted:
9 If the owner or occupier of land wishes to convey water across or along a highway by a pipe, ditch or flume, those works must be constructed,
(a) in the case of a concession highway, to the satisfaction of the concessionaire, or
(b) in the case of any other public highway, to the satisfaction of the minister.
32 Section 10 is amended by adding the following subsection:
(3) If the highway referred to in subsections (1) and (2) is a concession highway, a reference in those subsections to the minister is deemed to be a reference to the concessionaire.
33 Section 14 is amended by renumbering the section as section 14 (1) and by adding the following subsection:
(2) If the highway referred to in subsection (1) is a concession highway, a reference in subsection (1) (i), (j), (k) or (l) to the minister is deemed to be a reference to the concessionaire.
34 Section 16 (1) is repealed and the following substituted:
(1) The following persons may remove or cause to be removed a vehicle parked on a highway, whether attended or unattended, if the vehicle interferes with the normal flow of traffic on the highway or interferes with the maintenance of the highway by equipment for that purpose:
(a) in the case of a concession highway, the concessionaire;
(b) in the case of any other highway, any official of the Ministry of Transportation and Highways;
(c) in either case, any member of the Provincial police force or a municipal police department.
35 Section 20 is amended
(a) by renumbering the section as section 20 (1),
(b) in subsection (1) by striking out "section 14" and substituting "section 14 (1)", and
(c) by adding the following subsection:
(2) If the highway referred to in subsection (1) is a concession highway, a reference in that subsection to the minister is deemed to be a reference to the concessionaire.
36 Section 30 (1) is amended by adding ", other than a concession highway," after "arterial highway".
37 Section 32 is amended by adding the following subsections:
(4) If the arterial highway referred to in subsections (1) to (2) is a concession highway, a reference in those subsections to the minister is deemed to be a reference to the concessionaire.
(5) No part of the expense of a work constructed or maintained or a thing done by a person under a permit granted by a concessionaire under subsection (4) must be borne by the concessionaire or the government, and neither the concessionaire nor the government is liable for loss or damage to person or property caused, directly or indirectly, by a work constructed or maintained or a thing done under the permit.
38 Section 22 of the Ministry of Transportation and Highways Act, R.S.B.C. 1996, c. 311, is amended by renumbering the section as section 22 (1) and by adding the following subsection:
(2) For the purposes of subsection (1), a highway that is a concession highway within the meaning of the Transportation Investment Act is not under the minister's control during the currency of the concession agreement within the meaning of that Act.
39 Section 38 is amended by adding the following paragraph:
(i) to operate a highway that is a concession highway within the meaning of the Transportation Investment Act.
40 The following section is added to Part 4:
52 (1) Sections 49 to 51 do not apply to a ferry if that ferry is, or is part of, a concession highway under the Transportation Investment Act.
(2) For the purposes of this section, the Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act in relation to ferries referred to in subsection (1).
(3) Without limiting subsection (2), the Lieutenant Governor in Council may make regulations for this section as follows in relation to ferries referred to in subsection (1):
(a) prescribing a ferry or class of ferries to which this section applies;
(b) providing for the direction and control of passenger and vehicular traffic on ferries and in the vehicle and passenger areas of terminals or ferries;
(c) respecting the safety and security of individuals on ferries and in the vehicle and passenger areas of ferries or terminals;
(d) prohibiting conduct on ferries or in the vehicle or passenger areas of ferries or terminals that does or could
(i) pose a risk to the health, safety or security of individuals or property, or
(ii) interfere with the comfort and enjoyment of individuals using ferries or terminals;
(e) respecting the manner in which passengers and vehicles are to load onto and unload from ferries;
(f) respecting parking at terminals or on ferries.
41 Section 26 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, is amended
(a) in subsection (1) by striking out "or" at the end of paragraph (c), by adding ", or" at the end of paragraph (d) and by adding the following paragraph:
(e) is indebted to a concessionaire or the billing organization for an excessive toll debt, as those terms are defined in the Transportation Investment Act. , and
(b) in subsection (2) by adding ", or" at the end of paragraph (b) and by adding the following paragraph:
(c) is indebted to a concessionaire or the billing organization for an excessive toll debt, as those terms are defined in the Transportation Investment Act.
42 This Act comes into force by regulation of the Lieutenant Governor in Council.
This Bill authorizes the Minister of Transportation to enter into concession agreements with third parties whereby those third parties agree to provide consideration and highway-related services in return for acquiring rights to and interests in certain highways and related assets, including the right to charge tolls for vehicular use of the highways.
This Bill maintains universal access to concession highways and provides that the concessionaires assume the liability for operating and maintaining the highways and the government ceases to be liable for those activities.
Additionally, this Bill contemplates various tolling methods, provides review and appeal mechanisms to ensure appropriate tolling practices and provides protection for personal information of users of the concession highways.
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