Container Trucking Act

Container Trucking Act 28 2014 November 27, 2014 781755088/14028/1402801 E3tlc14028 1 Interpretation Definitions 1 In this Act: commissioner means the British Columbia Container Trucking Commissioner appointed under section 2; complaint means a complaint made under section 26; container has the meaning prescribed in the regulations; container trucking services means the transportation of a container by means of a truck; deemed licence means a trucking authorization deemed to be a licence by an order made under section 17; director has the same meaning as in the Employment Standards Act ; licence means a a licence issued by the commissioner under section 16, and b a deemed licence; licensee means a person who holds a licence; trucker means a a person who has an ownership interest or a leasehold interest in a vehicle that is designed to be self-propelled, i to which a trailer, within the meaning of the Motor Vehicle Act , that is designed, used or intended for the carriage of containers is or may be attached, and ii by which a trailer described in subparagraph (i) is or may be drawn, b an employee, within the meaning of the Employment Standards Act , of a licensee performing container trucking services, and c a person who drives a vehicle described in paragraph (a) on behalf of i a licensee, or ii a person referred to in paragraph (a); trucking authorization means a prescribed authorization issued under the Canada Marine Act to carry out container trucking services; wait time remuneration has the meaning prescribed in the regulations. 2 British Columbia Container Trucking Commissioner 1 Appointment of Commissioner Commissioner 2 1 The Lieutenant Governor in Council must appoint a British Columbia Container Trucking Commissioner and may appoint not more than 2 deputy commissioners. 2 The Lieutenant Governor in Council may, subject to this section, determine the remuneration and the terms and conditions of appointment of the persons appointed under subsection (1). 3 Deputy commissioners must, on the request of the commissioner, provide any assistance to the commissioner in the performance or exercise of the commissioner's powers, duties and functions that may be requested by the commissioner, including, without limitation, exercising any of the decision-making powers of the commissioner, and a reference in this Act to the commissioner includes a reference to the deputy commissioners if and to the extent that the deputy commissioners have been requested to assist the commissioner. 4 The definitions of "application", "constitutional question", "court", "privative clause", "tribunal" and "tribunal's enabling Act" in section 1 of the Administrative Tribunals Act and sections 21, 30, 44, 45, 46.3, 57, 58 and 61 of that Act apply to the commissioner. 5 The commissioner may perform or exercise other powers, duties or functions that the Lieutenant Governor in Council may prescribe. Interim commissioner 3 1 Before making a first appointment under section 2, the Lieutenant Governor in Council may appoint an employee appointed under the Public Service Act as the interim commissioner. 2 An appointment under subsection (1) is for a term specified by the Lieutenant Governor in Council, or, if no term is specified, for a term that ends on the date on which the term of the first person appointed under section 2 commences. 3 The interim commissioner has all the powers, duties and functions of the commissioner under this Act. Commissioner's power to delegate 4 1 The commissioner may delegate to any person any of the commissioner's powers, duties and functions under this Act, except the power to delegate under this section. 2 A delegation under this section a may be cancelled, b does not prevent the commissioner performing or exercising the delegated power, duty or function, and c may be made subject to the terms the commissioner considers appropriate. 3 If the commissioner ceases to hold office, a delegation under this section continues in effect a as long as the delegate continues in office, or b until cancelled by a succeeding commissioner. 4 A person who claims to be performing or exercising a power, duty or function delegated by the commissioner under this section must, on request, produce evidence of the delegation. Employees and consultants 5 1 The commissioner may appoint, in accordance with the Public Service Act , employees necessary to enable the commissioner to perform the duties of the office. 2 For the purpose of the application of the Public Service Act to subsection (1), the commissioner is declared to be a deputy minister. 3 The commissioner may retain auditors, consultants, inspectors or other persons or entities necessary to enable the commissioner to perform or exercise the powers, duties and functions of the office and may enter into agreements with the persons or entities respecting their remuneration and the terms and conditions of their retainers. 4 The Public Service Act does not apply in respect of a person retained under subsection (3). Rules of practice and procedure 6 1 The commissioner may make rules respecting practice and procedure for all applications, audits, complaints, reconsiderations, submissions and hearings coming before the commissioner and for all investigations. 2 The commissioner must make the rules respecting practice and procedure made under this section accessible to the public in the manner the commissioner considers appropriate. Financial administration 7 The commissioner must, whenever required by the minister, a render detailed accounts of the revenues and expenditures of the office of the commissioner for the period or to the day that the minister designates, and b provide to the minister a budget, satisfactory to the minister, for an upcoming fiscal year identified by the minister. Persons not required to testify or produce evidence 8 1 The commissioner, a deputy commissioner or an employee appointed under section 5 is not required to testify or produce evidence in any civil, administrative or regulatory action or proceeding respecting records or information obtained in the discharge of duties under this Act. 2 Despite subsection (1), the commissioner may be required by the Supreme Court to produce the record of a proceeding that is the subject of an application for judicial review under the Judicial Review Procedure Act . 2 Powers of Commissioner Orders of commissioner 9 1 If a licensee fails to comply with any provision of this Act or the regulations or with the licensee's licence, the commissioner may order the licensee to comply with those requirements promptly or within a period that the commissioner may specify. 2 An order of the commissioner takes effect immediately or on any later date specified in the order. 3 If a work, act, matter or thing is, by order of the commissioner, required to be performed or completed within a specified time, the commissioner may, if the circumstances of the case in the commissioner's opinion so require, extend the time so specified. Fees, information and records required on application 10 The commissioner may, a subject to the approval of Treasury Board, establish fees for the purposes of sections 16 (3) (b) and 20 (b), and b identify information and records that must be submitted on an application under section 16. Publication required 11 The commissioner must publish, in accordance with the regulations, a orders made under section 9, b application requirements identified under section 10 (b), c annual fees established under section 10 (a) for the purposes of section 20 (b), and d orders made under section 22 (3) or (4). Jurisdiction of commissioner exclusive 12 1 The commissioner has exclusive jurisdiction in all cases and for all matters in which jurisdiction is conferred on the commissioner by this or any other enactment. 2 An order, decision or proceeding of the commissioner must not be questioned, reviewed or restrained by any process or proceeding in any court. 3 Reports of Commissioner Annual reports 13 Within 5 months after the end of each fiscal year, the commissioner must make a report to the minister for the preceding fiscal year, setting out briefly a all applications to the commissioner under this Act, b all orders issued by the commissioner, c the financial statements applicable to the office of the commissioner including full disclosure of the expenses of, and associated with, the office of the commissioner, and d other information the minister, by order, specifies. Commissioner to make recommendations 14 In addition to any other reports the commissioner may or must provide under this Act, the commissioner must, when directed to do so by the minister, a review this Act and recommend to the minister any amendments to this Act that the commissioner considers will better enable the commissioner to perform or exercise the commissioner's powers, duties and functions under this Act, and b report to the minister on any other matter, as specified by the minister. 4 Fees Fees 15 The commissioner must pay into the consolidated revenue fund all fees paid to the commissioner. 3 Licences, Rates and Fuel Surcharges 1 Licences Licence required 16 1 A person must not carry out prescribed container trucking services in a prescribed area unless a the person holds a licence issued to that person that gives the person permission to carry out container trucking services in the specified prescribed area, and b the person carries out the container trucking service in compliance with i this Act and the regulations, ii the licence, and iii if applicable, an order issued to the person under this Act. 2 The commissioner, by publishing an advertisement in accordance with the regulations, may invite applications for a licence. 3 Within the time specified in an advertisement published under subsection (2), a person may apply to the commissioner for a licence by submitting, in the form and manner the commissioner requires, a the required information and records, b the required fee, and c the security required under section 20, if any. 4 Subject to subsection (5), on receiving an application under subsection (3) and after considering the prescribed matters, if any, the commissioner may a issue a licence to an applicant if the applicant meets the prescribed requirements, or b refuse to issue a licence. 5 If the commissioner refuses, under subsection (4) (b), to issue a licence to an applicant, the commissioner must provide notice to the applicant of that refusal. Trucking authorization deemed to be licence 17 1 The Lieutenant Governor in Council may, by order, deem each trucking authorization in a specified class of trucking authorizations to be a licence under this Act. 2 An order made under subsection (1) may also specify a class of deemed licences for the purposes of subsection (3). 3 If a trucking authorization that is a deemed licence a is cancelled by the authority that issued or otherwise granted the trucking authorization, or b otherwise expires, the deemed licence expires on the date of that cancellation or expiry, if the deemed licence is in a class of deemed licences specified under subsection (2). Conditions on licence 18 1 In issuing a licence under section 16 (4) (a), the commissioner may impose any conditions that the commissioner considers necessary. 2 Without limiting subsection (1), the commissioner may impose a condition on a licence respecting a the payment of wait time remuneration by the licensee to truckers employed or retained by the licensee, and b subject to the regulations, if any, the terms and conditions of employment or retainers respecting truckers employed or retained by the licensee. Amendment of licence 19 1 After giving a licensee an opportunity to be heard, the commissioner may amend a licensee's licence. 2 Without limiting subsection (1), the commissioner may amend a licence to impose a condition respecting the payment of wait time remuneration by the licensee to truckers employed or retained by the licensee. 3 If the commissioner amends a licence under this section, the commissioner must provide notice to the licensee of the amendment. Security and annual fees 20 The commissioner, by order or by imposition of a condition under section 18 or 19, may require a a licensee or an applicant for a licence to provide security to the commissioner, in the amount the commissioner requires and in accordance with the regulations, to ensure the performance of an obligation under this Act or a licence, and b a licensee to pay an annual fee, in the amount and at the time specified in the order. Cancellation of licence 21 1 The commissioner, after providing notice to the licensee, may cancel a licence if the commissioner is satisfied that the licensee is no longer carrying out container trucking services. 2 If the commissioner cancels a licence under subsection (1), the commissioner must provide notice to the former licensee of the cancellation. 2 Rates and Fuel Surcharges Rates and fuel surcharges may be established 22 1 The Lieutenant Governor in Council may, by regulation, a establish an initial minimum rate that a licensee must pay to a trucker who provides, in specified circumstances, specified container trucking services to or on behalf of the licensee, b establish a rate under paragraph (a) based on one or more of the following: i a rate per trip; ii an hourly rate; iii any other basis the Lieutenant Governor in Council considers appropriate, c for the purposes of paragraph (a), specify one or more circumstances and one or more container trucking services on any one or more of the following: i the starting point of the container trucking services; ii the end point of the container trucking services; iii the geographic area within which the container trucking services are carried out; iv the dates or times of the container trucking services; v the duration or distance travelled during the carrying out of the container trucking services; vi any other basis the Lieutenant Governor in Council considers appropriate, d for the purposes of paragraph (b) (i), specify which container trucking services or which parts of the container trucking services constitute a trip to which a rate established under paragraph (b) is to apply, e specify the time by which a rate established under paragraph (a) must be paid, and f establish an initial minimum fuel surcharge, based on a specified unit of fuel used during the provision of container trucking services, that a licensee must pay to a trucker who provides, in specified circumstances, specified container trucking services to or on behalf of the licensee. 2 For certainty, an initial minimum rate and an initial minimum fuel surcharge established under subsection (1) may be based on container trucking services provided before this section comes into force. 3 If the Lieutenant Governor in Council repeals the initial minimum rate established under subsection (1), the commissioner may establish, by order, a minimum rate, and, for that purpose, subsection (1) applies as if a reference in that subsection to the Lieutenant Governor in Council were a reference to the commissioner. 4 If the Lieutenant Governor in Council repeals the initial minimum fuel surcharge established under subsection (1), the commissioner may establish, by order, a minimum fuel surcharge, and, for that purpose, subsection (1) applies as if a reference in that subsection to the Lieutenant Governor in Council were a reference to the commissioner. 5 An order made under subsection (3) or (4) comes into force on the date the order is published under section 11 or on a later date specified in the order. 3 Obligations on Licensees Compliance with established rate 23 1 A licensee, in seeking to employ or retain a trucker to provide container trucking services to or on behalf of the licensee, must not offer to the trucker, or require or request the trucker to accept, a rate or a fuel surcharge that is less than the rate or fuel surcharge established under section 22 for those container trucking services. 2 A licensee who employs or retains a trucker to provide container trucking services must pay the trucker a rate and a fuel surcharge that is not less than the rate and fuel surcharge established under section 22 for those container trucking services. 3 For certainty, subsection (2) applies despite any provision of a collective agreement to the contrary. Financial set-offs, commissions and deductions 24 A licensee must not solicit or receive, directly or indirectly, a financial set-off, commission or rate deduction or rebate from a trucker. Records 25 For each trucker employed or retained to provide container trucking services, the licensee must prepare and keep records as required by the commissioner. 4 Enforcement 1 Complaints Complaint 26 Any person may, in accordance with rules made under section 6, make a complaint to the commissioner that a licensee or a trucker has contravened a provision of this Act. If complainant requests identity be kept confidential 27 If requested by a complainant, the commissioner must make best efforts to avoid disclosing any identifying information respecting the complainant unless the disclosure is necessary for the purposes of a proceeding under this Part. Trucker not to be mistreated because of complaint, inspection or investigation 28 A licensee must not do any of the following because a complaint, inspection or investigation may be or has been made under this Part, because other action may be or has been taken under this Part or because information may be or has been supplied under this Part: a refuse to employ or retain or refuse to continue to employ or retain a trucker; b threaten a trucker; c discriminate against or threaten to discriminate against a trucker with respect to container trucking services; d intimidate or coerce or impose a monetary or other penalty on a trucker. Commissioner to pursue complaints 29 1 Subject to subsection (2), the commissioner must accept and review a complaint made in accordance with section 26. 2 The commissioner may refuse to accept or review a complaint or may stop or postpone reviewing a complaint if a the complaint is not made or delivered to the commissioner in accordance with section 26, b the complaint is frivolous, vexatious or trivial or is not made in good faith, c there is no reasonable prospect that the complaint will succeed, d a proceeding relating to the subject matter of the complaint has been commenced before a court, a tribunal, an arbitrator or a mediator, e a court, a tribunal or an arbitrator has made a decision or an award relating to the subject matter of the complaint, or f the dispute that caused the complaint is resolved. 3 If the commissioner refuses to accept or review a complaint or stops or postpones reviewing a complaint, the commissioner must provide notice to the complainant of the decision, and the notice must advise the complainant of the reasons for that decision. Commissioner may share information 30 1 The commissioner may enter into an information-sharing agreement with the director or a person or entity approved by the Lieutenant Governor in Council. 2 An information-sharing agreement may only be entered into a for the purposes of the administration of this Act, b for the purposes of the administration of the Employment Standards Act , or c for any other purpose specified by the Lieutenant Governor in Council. 2 Audits, Inspections and Investigations Commissioner may conduct audit or investigation 31 The commissioner may conduct an audit or investigation to ensure compliance with this Act, the regulations and a licence, whether or not the commissioner has received a complaint. Entry and inspection powers 32 1 For the purpose of an audit or investigation under section 31 or for the purposes of reviewing, investigating or adjudicating a complaint, the commissioner may, if the commissioner has reasonable grounds to believe that there has been a contravention of this Act or the regulations, do one or more of the following: a enter during regular working hours any place, including any means of conveyance or transport, where i a licensee carries on business or stores assets or records relating to the licensee's business, ii a record required for the purposes of this Part is kept, or iii anything to which this Part applies is taking place or has taken place; b inspect, and question a person respecting, any work, container, means of conveyance or transport or other thing in the place; c inspect any records and things that may be relevant to an investigation under this Part; d on giving a receipt for a record inspected under paragraph (c), remove the record to make copies or extracts; e require a person to disclose, under oath or affirmation, either orally or in writing, a matter required under this Part; f require a person to produce, or to deliver to a place specified by the commissioner, any records and things for inspection under paragraph (c). 2 Despite subsection (1), the commissioner may enter a place occupied as a private residence only with the consent of the occupant or under the authority of a warrant issued under section 33. 3 A licensee or trucker must not obstruct the commissioner's inspection under this section or withhold, destroy, conceal or refuse to produce any information, record or thing that is required by the commissioner for the purposes of the inspection or is otherwise relevant to any of the matters in respect of which the inspection may be conducted. 4 Without limiting section 27, a person, including the commissioner, must not disclose or be compelled to disclose any information, record or thing that is obtained in the course of an inspection unless the disclosure is necessary in the administration of this Act or is otherwise required by law. 5 If an original of a record or thing is produced, or delivered to or removed by the commissioner, the commissioner must, within 10 days after being requested to do so by the person from whom the original record or thing was obtained, return the original record or thing to that person. 6 Copies of or extracts from records or things produced, delivered or removed that are certified by the commissioner as being true copies of or extracts from the originals are admissible in evidence to the same extent, and have the same evidentiary value, as the original records or things. Warrant to exercise audit and inspection powers 33 If satisfied that there are reasonable grounds to believe there are in a private residence records or things that are relevant to an investigation under this Part, a justice may issue a warrant authorizing the person named in the warrant to enter the private residence in accordance with the warrant in order to exercise the powers referred to in section 32. 3 Penalties Penalties relating to licences 34 1 Subject to subsection (2), if the commissioner is satisfied that a licensee has failed to comply with this Act or the terms and conditions of the licensee's licence, the commissioner may, in accordance with this Part and within 6 months after becoming aware of the licensee's failure to comply, take one or more of the following actions: a order that the licensee's licence be suspended for the period specified by the commissioner; b order that the licensee's licence be cancelled; c order that an administrative fine be imposed on the licensee. 2 If the commissioner proposes to impose a penalty under subsection (1), the commissioner must provide notice to the licensee of that intention, and the notice must a advise which of the penalties referred to in subsection (1) the commissioner proposes to impose, b if the commissioner proposes to impose a penalty referred to in subsection (1) (a), indicate the period proposed for that suspension or prohibition, c if the commissioner proposes to impose a penalty referred to in subsection (1) (c), indicate the amount of the proposed administrative fine, d set out the reasons for the proposed penalty, e advise that the licensee may, within 7 days after receipt of the notice, provide to the commissioner a written response setting out why the proposed penalty should not be imposed, and f advise that the commissioner will, if the licensee provides a written response in accordance with paragraph (e), provide notice to the licensee of the commissioner's decision respecting that response. 3 If a licensee who receives a notice under subsection (2) does not provide a written response within the time specified in the notice, the commissioner a may impose the penalty proposed in the notice, and b must provide notice to the licensee of any penalty imposed. 4 If a licensee who receives a notice under subsection (2) provides a written response within the time specified in the notice, the commissioner must consider that response and may make a decision to a refrain from imposing any or all of the proposed penalties, or b impose any or all of the proposed penalties. 5 The commissioner must provide notice to the licensee of the commissioner's decision under subsection (4). 6 A penalty referred to a in subsection (1) (a) must not exceed a period of 1 year, and b in subsection (1) (c) must not exceed the prescribed amount. 7 On application, the commissioner may, at any time after imposing a penalty under subsection (1), reduce or rescind that penalty. Imposition of administrative fines 35 1 If an administrative fine is imposed under section 34 (1) (c), the notice provided under section 34 (3) (b) or (5) must advise the licensee of the amount and manner of payment of the administrative fine. 2 A licensee who is subject to an administrative fine must pay the fine amount to the commissioner within 30 days after the date of the notice. 3 The commissioner must pay all amounts derived from administrative fines into the consolidated revenue fund. 4 If, after an administrative fine has been paid, the amount of the administrative fine is reduced or cancelled on a reconsideration under section 39, the amount to be returned to the licensee must be paid out of the consolidated revenue fund without an appropriation other than this section. 5 If a licensee who is subject to an administrative fine does not pay the full amount of the administrative fine to the commissioner within the time required under subsection (2), the commissioner may issue a certificate setting out the unpaid amount of the administrative fine and, in that event, a the certificate is conclusive as to the unpaid amount of the administrative fine, b that amount is a debt due to the government by the licensee, and c the certificate, if filed in the Supreme Court, has the same effect and is subject to the same proceedings as a judgment of the court for the recovery of a debt in the amount stated in the certificate against the person named in it. 5 Reconsiderations Definitions 36 In this Part: commissioner's decision means a decision of the commissioner under section 16 (4) (b), 21 or 34 (3) or (4); decision notice means a notice provided to a licensee under section 16 (5), 21 (2) or 34 (3) (b) or (5). Decision notice must include advice respecting reconsideration 37 A decision notice must include notification that the person to whom the decision notice is addressed may request a reconsideration by the commissioner of the commissioner's decision. Initiating reconsiderations 38 1 A commissioner's decision may be reconsidered by filing a notice of reconsideration with the commissioner not more than 30 days after the licensee's receipt of the decision notice. 2 The commissioner may extend the time to file a notice of reconsideration, whether or not the time to file the notice of reconsideration under subsection (1) has expired, if the commissioner is satisfied that a special circumstances existed that precluded the filing of that notice of reconsideration within the time required in subsection (1), and b an injustice would otherwise result. 3 A notice of reconsideration must a be made in writing or in another form satisfactory to the commissioner, b identify the decision for which a reconsideration is requested, c state why the decision should be changed, d state the outcome requested, e include the name, address and telephone number of the appellant, and, if the appellant has an agent to act on the appellant's behalf in respect of the appeal, include the full name of the agent and a telephone number at which the agent may be contacted during normal business hours, f include an address for delivery of any notices in respect of the appeal, and g be signed by the appellant or the appellant's agent. 4 Despite subsection (3), if a notice of reconsideration is deficient, the commissioner may in the commissioner's discretion allow a reasonable period of time within which the notice of reconsideration may be perfected. Reconsiderations 39 1 Despite the filing of a notice of reconsideration under section 38 (1) but subject to subsection (2) of this section, the commissioner's decision that is subject to the reconsideration remains in effect until the outcome of the reconsideration. 2 On a reconsideration from an order of the commissioner referred to in section 34 (1) (a), (b) or (c), the commissioner may, at any time before making a final determination on the reconsideration, order that the commissioner's order be suspended until the outcome of the reconsideration. 3 On a reconsideration under this section, the commissioner must, after considering the information provided by the licensee, a rescind the commissioner's decision, or b confirm the commissioner's decision. 4 The commissioner must provide notice to the licensee of the decision made under subsection (3). 5 If the suspension or cancellation of a licence is rescinded, the commissioner must promptly reinstate and, if necessary, reissue the licence that was suspended or cancelled. 6 If the imposition of a condition or the amendment of a licence is rescinded, the commissioner must promptly reissue the licence with the condition removed or the amendment reversed. 6 General Compliance with orders 40 A person to whom an order under this Act applies must comply with the order. Offence Act 41 Section 5 of the Offence Act does not apply to this Act or the regulations. Offences 42 1 A person who contravenes section 16 or subsection (2) of this section commits an offence and is liable on conviction to a fine not exceeding $10 000. 2 A person must not purport to be a a licensee, or b a trucker authorized to carry out container trucking services to or on behalf of a licensee unless the person is a licensee or trucker authorized to carry out container trucking services to or on behalf of a licensee. Time limit for commencing prosecution 43 1 The time limit for laying an information to commence a prosecution for an offence under this Act is a 3 years after the date on which the act or omission that is alleged to constitute the offence occurred, or b if the commissioner issues a certificate described in subsection (2), 3 years after the date on which the commissioner learned of the act or omission referred to in paragraph (a). 2 A certificate purporting to have been issued by the commissioner certifying the date referred to in subsection (1) (b) is proof of that date. Power to make regulations 44 1 The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act . 2 Without limiting subsection (1) or section 22, the Lieutenant Governor in Council may make the following regulations: a defining "container" and "wait time remuneration" in section 1 and any other word or expression used but not defined in this Act; b identifying authorizations for the purposes of the definition of "trucking authorization" in section 1; c prescribing additional powers, duties or functions for the purposes of section 2 (5); d prescribing publication requirements for the purposes of section 11; e prescribing types of container trucking services for the purposes of section 16 (1); f prescribing areas for the purposes of section 16 (1); g prescribing requirements for the purposes of section 16 (2); h prescribing matters for the purposes of section 16 (4); i respecting conditions referred to in section 18 (2) (b); j respecting security required under section 20, including, without limitation, prescribing i the minimum or maximum amount of security, or both, that may be required, ii the forms of security that may be provided, and iii the circumstances under which security may be realized; k prescribing amounts for the purposes of section 34 (6) (b); l prescribing rules of practice and procedure for the commissioner. 3 If the Lieutenant Governor in Council prescribes rules of practice and procedure for the commissioner under subsection (2) (l), any rules made by the commissioner are inapplicable to the extent they are inconsistent with the prescribed rules. Commencement 45 This Act comes into force by regulation of the Lieutenant Governor in Council.