Guidelines Respecting the Change of Ownership, Operator, or Control Under the International Bridges and Tunnels Act, S.C. 2007, c.1

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General

1. These guidelines will apply to any application for:

1. The operator of an international bridge or tunnel;
2. The acquisition of an ownership interest into an international bridge or tunnel; and
3. The acquisition of the controlling interest of an entity that owns or operates an international bridge or tunnel.

2. It is the responsibility of the applicant to ensure that the application submitted to the Minster of Transport is complete with all necessary documentation required by these Guidelines.

Interpretation

3. The following definitions, which are found in section 2 of the Act, have the same meaning in these Guidelines:

• “entity” means a corporation, partnership, trust, joint venture or unincorporated association or organization.

• “international bridge or tunnel” means a bridge or tunnel, or any part of it, that connects any place in Canada to any place outside Canada, and includes the approaches and facilities related to the bridge or tunnel.

• “Minister” means the Minister of Transport.        

Receipt of Application

An application for change of ownership, operator or control of an international bridge or tunnel must be submitted to the Minister of Transport at the following address:

Minister of Transport Canada
Place de Ville, Tower C,
330 Sparks Street
Ottawa, Ontario
K1A 0N5

Number of copies

5. An applicant should provide the Minister with ten (10) copies of the application and supporting documentation. Additional copies may be requested by the Minister.

Application

6. An application should include the following information supported, where applicable, with all necessary documentation:

1. Applicant– The name, citizenship and address of the person or entity that is proposing to purchase, operate, or acquire a controlling interest into an entity that owns or operates an international bridge or tunnel. In the case of an entity, copy of the incorporation document, articles of incorporation, memoranda of association or Letters Patent of Incorporation. In the case of an entity, the name, address and citizenship of: (i) all officers and directors of the corporation; (ii) the partners in a partnership; (iii) the trustee in a trust; or (iv) any person that has an interest into the joint venture or the unincorporated association or organization. If any such person is an entity, the information mentioned in (i) to (iv) in respect of that person should be provided. The name, address and citizenship of any person that beneficially owns securities of the entity.

2. Means and Assets– A detailed description of the transaction, instrument or means by which the person or entity is proposing to purchase, operate, or acquire a controlling interest into an entity that owns or operates an international bridge or tunnel. Description of the bridge or tunnel structures and facilities, including property titles, the condition of the structures and facilities and the utilities supported by the structures. Detailed information on the stakeholders’ environment, information on any existing agreements or memorandum of understanding with Canadian and U.S. governments, companies or other organizations, that the person will have to honour.

3. Financing– The amount, source and nature of the funds needed to operate the international bridge or tunnel, to acquire the international bridge or tunnel or to acquire the controlling interest into an entity that owns or operates an international bridge or tunnel. In the case of an entity, copy of the entity’s audited financial statements, income statement and pro forma should be included. The signed shareholder’s agreement should one exist. Any other additional information and documentation, over and above that specifically requested, which may otherwise be relevant to an approval under the International Bridges and Tunnels Act.

4. Operation and Maintenance –To the extent that an application relates to an approval for an operator of an international bridge or tunnel (either independently or jointly with another request for approval), detailed information as to the prospective operator’s qualification and expertise to carry out the operation and maintenance of the bridge or tunnel as per all applicable standards. If the maintenance of the bridge or tunnel is or will be carried out by a third party, information respecting that third party or any existing or future contractual arrangement with that third party should be provided, including the name, address and qualification and expertise of the third party in carrying out the maintenance of the bridge or tunnel as per all applicable standards. Five year plan for the operation and maintenance of the structures, including objectives and strategies, cashflow projections, capital budget and the source of funds (securities issue, line of credit, loans, cash on hand, etc.).

5. Other Canadian Approvals – An application for change of ownership, operator or control of an international bridge or tunnel under the International Bridges and Tunnels Act, does not relieve the person or entity from any other legislative or regulatory requirements, including the application of any other Act of Parliament. The application should include a list of all other legislative or regulatory requirement, permissions or approvals that apply or will be required and include a description of the steps that have been or will have to be taken to meet these requirements or secure these permissions or approvals. Section 8 of these guidelines provides for a non-exhaustive list of other requirements, permissions or approvals that may apply or be required under other federal legislation in relation to the present application.

6. Insurance and Securities Planning– Evidence of adequate liability insurance in respect of the ownership, operation and maintenance of the bridge of tunnel. Evidence of securities planning in respect of the ownership, operation and maintenance of the bridge or tunnel.

Additional Information

7. Further information or documents may be requested by the Minister upon reviewing the information or documents filed.

8. The information listed below is for information only and does not constitute an exhaustive list of every other requirement, permissions or approvals that may apply under other federal legislation.

1. The person or entity proposing to become the operator of, to acquire an ownership interest into, or to acquire control of an entity that owns or operates an international bridge or tunnel, should consult the Competition Act, the Canada Transportation Act and the Canada Investment Act and consider whether any permissions, authorizations or requirements under these Acts apply.

2. The person or entity proposing to become the operator of an international railway bridge or tunnel should consult the Canada Transportation Act, S.C. 1996, c. 10 and the Railway Safety Act, R.S.C. 1985, c. 32 (4th Supp.) and consider whether any permissions, authorizations, or requirements under these Acts apply or are required in respect of the operation of an international railway bridge or tunnel.

Affidavit

9. All of the information contained in this application, including the supporting documentation and changes subsequently made thereto, should be verified by an affidavit of the applicant, attesting to its truth, accuracy and completeness.

Confidentiality

10. Any information or documents that are confidential should be marked as such when filed. Where a claim of confidentiality is asserted in respect of any information or document, the applicant should specify the grounds for such claim including that the information or document contains: (i) trade secrets (ii) confidential financial, commercial, scientific or technical information consistently treated as such by the applicant; (iii) information, the disclosure of which could result in a material financial loss of could reasonably be expected to prejudice the applicant’s competitive position; or (iv) information, the disclosure of which could reasonably interfere with contractual or other negotiations of the applicant.

Evaluation Process

11. The Department will screen or assess each application to determine if the application includes all further documents as needed to substantiate information contained in the application.

12. Transport Canada may seek input from other federal government departments that have expertise, vested interest or responsibilities relevant to the application.

Amended Application

13. The applicant may be required to prepare an amended application reflecting any agreements made in the course of mitigation and/or addressing departmental concerns. Transport Canada would then circulate the amended application for final review. If, upon consultations with the other departments, Transport Canada finds the application complete, the application will be referred to the Minister for review.

Decision

14. Once all consultations, findings and approvals referred to above have been made, the Minister will provide a recommendation and the application will be submitted to the Governor in Council for final decision.

Coordination with the Government of the United States

15. The Department of Foreign Affairs and International Trade and the Embassy of Canada coordinate closely with the Government of the United States on issues affecting the U.S.-Canada border. As appropriate, the Department of Foreign Affairs and International Trade communicates with the State Department via diplomatic note at various stages in the approval process. The Department of Foreign Affairs and International Trade will inform the State Department when applications are received and approved.

More Information

16. Questions concerning the application for change of ownership, operator or control of an international bridge or tunnel should be directed to the Surface Infrastructure Programs of Transport Canada at the address below:

Director General
Surface Infrastructure Programs
Transport Canada
Ottawa, Ontario  K1A 0N5
Tel: (613) 949-4641