ARCHIVED — Vol. 146, No. 7 — February 18, 2012

DEPARTMENT OF TRANSPORT

CANADA MARINE ACT

Letters Patent issued to the Oshawa Port Authority

BY THE MINISTER OF TRANSPORT:

WHEREAS the Oshawa Harbour Commission was constituted as a corporation under the Harbour Commissions Act (R.S.C., 1985, c. H-1);

WHEREAS subsection 10(1) of the Canada Marine Act (“Act”) provides that if the Minister of Transport is satisfied that the criteria set out in subsection 8(1) of the Act are met, the Minister may issue, in respect of a harbour commission established under the Harbour Commissions Act, letters patent continuing the harbour commission as a port authority that set out the information required by subsection 8(2) of the Act;

AND WHEREAS the Minister of Transport is satisfied that, in respect of the Oshawa Harbour Commission, the criteria set out in subsection 8(1) of the Act have been met;

NOW KNOW YOU that under the authority of the Canada Marine Act, by these Letters Patent, the corporation known as the Oshawa Harbour Commission is continued as a port authority under the name of the Oshawa Port Authority as follows:

ARTICLE 1

EFFECTIVE DATE, DEFINITIONS AND INTERPRETATION

1.1 Effective Date. These Letters Patent take effect on the date of issuance.

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 Oshawa Port Authority; (Administration)

“Board” means the board of directors of the Authority; (Conseil)

“Borrowing” has the meaning ascribed to such term in section 9.2; (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; (Élément 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 4.5; (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; (Procédures judiciaires importantes)

“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 Oshawa Port Authority.

2.2 Registered Office of Authority. The registered office of the Authority is located at 1050 Farewell Avenue, Oshawa, Ontario L1H 6N6.

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 Appointment of Directors. The directors of the Authority shall be appointed to hold office as follows:

  1. (a) the Governor in Council appoints one (1) individual nominated by the Minister;

  2. (b) the Corporation of the City of Oshawa appoints one (1) individual;

  3. (c) the Province of Ontario appoints one (1) individual; and

  4. (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.

4.3 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:

  1. (a) fill a vacancy in the office of the auditor of the Authority;

  2. (b) issue debt obligations except in the manner and on the terms authorized by the Board;

  3. (c) approve the audited financial statements of the Authority;

  4. (d) adopt, amend or repeal by-laws; or

  5. (e) authorize or ratify any activity carried on or to be carried on or any power exercised or to be exercised by a Subsidiary.

4.4 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 four (4) User Director positions.

4.5 Nominating Committee. A permanent Nominating Committee shall be formed and be composed of four (4) members to be appointed by users in Class 1.

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:

  1. (a) contact the members of the users in Class 1 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;

  2. (b) compile a list of potential candidates from all the names of candidates received;

  3. (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;

  4. (d) the Nominating Committee shall be responsible for reviewing the recommendations from the users in Class 1 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

  5. (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.

4.6 Scope of Process. Nothing in the process described in sections 4.4 and 4.5 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 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.

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:

  1. (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)

  2. (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)

  3. (c) “Disclosure Statement” has the meaning ascribed to such term in section 6.4; (Déclaration)

  4. (d) “Permitted Exclusions” means:

    1. (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 and Federal Immovables Act;

    2. (ii) all Revenue of a Subsidiary, provided that:

      1. (A) the Subsidiary is subject to pay income tax to Her Majesty on such Revenue; and

      2. (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. (1) such Capital Investment has yielded a Sufficient Return for the relevant Fiscal Year; or

        2. (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

    3. (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)
  1. (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:

  1. (a) 2% of the first $10,000,000 of Calculated Gross Revenue for the Fiscal Year to which the charge relates;

  2. (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;

  3. (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;

  4. (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

  5. (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 Minister 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 OF THE AUTHORITY AND POWERS AND ACTIVITIES OF SUBSIDIARIES

7.1 Activities of the Authority Giving Status of Agent of the Crown. The Authority is an agent of Her Majesty in right of Canada only for the purposes of engaging in the port activities referred to in paragraph 28(2)(a) of the Act, being activities related to shipping, navigation, transportation of passengers and goods, handling of goods and storage of goods, on federal real property described in Schedule B or on real property other than federal real property described in Schedule C, to the extent that these activities are specified below:

  1. (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;

  2. (b) management, leasing or licensing the real property other than federal real property described in Schedule C and the federal real property described in Schedule B, 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:

    1. (i) any activity described in section 7.1;

    2. (ii) government sponsored economic development initiatives approved by Treasury Board, provided that such a use is carried on by third parties, other than Subsidiaries, pursuant to leasing or licensing arrangements;

  3. (c)  construction, establishment, repair, maintenance, operation, removal or demolition of:

    1. (i)     disposal sites for carrying out the activities contemplated in paragraph 7.1(e)

    2. (ii)    berths, wharfs, anchorages, breakwaters, waterways, docks, dockwalls, fill sites, or facilities for vessel fuelling stations incidental to the handling and shipping of goods;

    3. (iii)   facilities or equipment for finish or assembly work incidental to the handling or shipping of goods;

    4. (iv)   transportation, terminal, warehousing and other port facilities or equipment;

    5. (v)    office premises to be utilized by the Authority in the conduct of its activities; and

    6. (vi)   facilities for vehicle storage, repair and fuelling stations incidental to the handling or shipping of goods;

  4. (d)  environmental assessment, audit, remediation, rehabilitation of marine habitat or other such services;

  5. (e) 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);
  6. (f) navigational services and aids;

  7. (g) stevedoring services;

  8. (h) building, design, maintenance, engineering, repair and operation of vessels owned by the Authority or leased by the Authority from third parties;

  9. (i) emergency planning and response;

  10. (j) vehicle parking, control or marshalling facilities;

  11. (k) multi-modal facilities and services;

  12. (l) transport services within the port or transport services to provide access to or from the port and its facilities;

  13. (m) providing information and information technology to users of the port;

  14. (n) salvage and seizure;

  15. (o) warehousing and distribution of goods and services;

  16. (p) security services and dispatching services;

  17. (q) harbour patrol services for the navigable waters of the port;

  18. (r) handling of goods and storage of goods, to or for users of the port in connection with their use of the port and its facilities;

  19. (s) towing vessels;

  20. (t) undertaking research and development related to the activities described in this section 7.1;

  21. (u) promoting, marketing and undertaking public or governmental relations to promote use of the port,

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 not Giving Status of Agent of the Crown. To operate the port, the Authority may undertake the following activities, on federal real property described in Schedule B or on real property other than federal real property described in Schedule C, which are deemed necessary to support port operations pursuant to paragraph 28(2)(b) of the Act:

  1. (a) administration, leasing or licensing the real property other than federal real property described in Schedule C and the federal real property described in Schedule B, 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:

    1. (i) any activity described in section 7.2;

    2. (ii) manufacturing, fabricating or processing of goods incidental to the handling or shipping of goods through the port, to the extent compatible with port operations and the land-use plan for the port and without compromising the ability of the Authority to operate port facilities over the long term;

    3. (iii) government-sponsored economic development initiatives approved by Treasury Board;

    provided such uses described in paragraph 7.2(a)(ii) and paragraph 7.2(a)(iii) are carried on by third parties, other than Subsidiaries, pursuant to leasing or licensing arrangements;

  2. (b) acquisition, disposition, holding, leasing or licensing of personal property;

  3. (c)  renting equipment;

  4. (d)  development, operation, maintenance, renovation and demolition of rest areas, public parks, pedestrian and bicycle paths and observation areas within the boundaries of the port;

  5. (e)  operate restaurant operations;

  6. (f)   operate retail operations;

  7. (g)  provide municipal-type services;

  8. (h)  market its expertise;

  9. (i)   operate a marina;

  10. (j)   hold/host public events;

  11. (k)  operate a harbour patrol;

  12. (l) operate drydock facilities.

7.3 Powers and activities of the Subsidiary. The Subsidiary may exercise the following powers and activities for the purpose of constructing, establishing, managing, repairing, maintaining, operating, removing, or demolishing facilities for the transportation and storage of supplies and products related to the manufacturing, fabricating, or processing of goods incidental to the handling or shipping of goods through the port:

  1. (a) borrowing money on the credit of the Subsidiary;

  2. (b) issuing bonds, debentures or other securities of the Subsidiary;

  3. (c) pledging or selling such bonds, debentures or other securities for such sums and at such prices as may be deemed expedient;

  4. (d) 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 property and leasehold interests and reversionary interests of the Subsidiary and the undertaking and rights of the Subsidiary;

  5. (e) acquisition, disposition, occupying, holding, developing, leasing or licensing, of real property other than federal real property, for, or in connection with, the activities described in this article 7.3;

  6. (f) leasing or licensing federal real property from the Authority for, or in connection with, the activities described 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 federal real property for a term in excess of 60 years where such lease or licence is granted pursuant to section 7.1 or for a term in excess of 40 years where such lease or licence is granted pursuant to section 7.2 provided however that with the written consent of the Minister, the Authority may lease or license such federal real property for a maximum term of 99 years.

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:

  1. (a) the number of years for which a lessee or licensee has the right to occupy the demised premises or licensed area; and

  2. (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 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 government sponsored economic development initiatives approved by Treasury Board 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:

  1. (a) the requirements respecting the publication of a notice or advertisement requesting bids for Work Contracts;

  2. (b) the policies and procedures respecting bidding for Work Contracts;

  3. (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

  4. (d) exceptions to tendering requirements:

    1. (i) where there exists only one supplier of the work;

    2. (ii) for emergencies;S

    3. (iii) where the Authority itself performs the work;

    4. (iv) where the delay resulting from compliance with formal tendering requirements is reasonably expected to be injurious to the public interest; and

    5. (v) for Work Contracts below a value determined by the Board.

ARTICLE 9

BORROWING

9.1 Restriction on Incurrence of Borrowing. The Authority shall not incur any item of Borrowing so that the aggregate Borrowing of the Authority would exceed $500,000 Canadian dollars, subject to the following restrictions:

  1. (a) The Authority shall not incur any borrowing with a term that exceeds 365 days;

  2. (b) The Borrowings of the Authority shall not be used to finance:

    1. (i) any investment that the Authority reasonably assesses to produce financial benefits beyond 365 days; or

    2. (ii) deficits in funds that the Authority reasonably assesses to be permanent in nature; and

  3. (c) The Authority shall only borrow from a member of the Canadian Payments Association.

9.2 Borrowing. “Borrowing” means the following items for the Authority (adjusted to give effect to the provisions of section 9.3), without duplication, as follows:

  1. (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;

  2. (b) all obligations, contingent or otherwise, relative to the face amount of all letters of credit, whether or not drawn, and bankers’ acceptances issued;

  3. (c) any obligation as lessee under leases which have been or should be, in accordance with GAAP, recorded as Capitalized Lease Liabilities;

  4. (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;

  5. (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;

  6. (f) all Contingent Liabilities of the Authority in respect of any of the foregoing; or

  7. (g) the amount of the aggregate potential liability of the Authority pursuant to the terms of a Permitted Indemnity or Guarantee.

9.3 Exclusion of Subsidiaries. In determining the Borrowing pursuant to section 9.2, any amounts pertaining to Subsidiaries carrying on activities contemplated by paragraph 28(2)(b) of the Act shall be excluded.

9.4 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:

  1. (a) the amount of the aggregate Borrowing of the Authority at the end of the Fiscal Year to which such financial statements relate;

  2. (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;

  3. (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;

  4. (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

  5. (e) that the Authority is not aware of any contract for the borrowing of money 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.

9.5 Pledge of Fixtures. In accordance with subsections 31(4) and 31(5) of the Act, the Authority may create a security interest in fixtures on federal real property to the same extent as Her Majesty could create such an interest and may, instead of Her Majesty, execute and deliver the documents required for that purpose, provided that

  1. (a) such 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 security interest; and

  2. (b) the party receiving such security interest agrees that upon the exercise of the right to remove such fixture 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 fixture.

9.6 Debt and Securities. The Authority may:

  1. (a) issue bonds, debentures or other securities of the Authority and pledge or sell such bonds, debentures or other securities for such sums and at such prices as may be deemed expedient;

  2. (b) secure any such bonds, debentures or other securities, or any other present or future borrowing or liability of the Authority, by security interest relating to all or any currently owned or subsequently acquired real and personal 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, by mortgage, or otherwise create a security interest in federal real property described in Schedule B other than to create a security interest in the revenues of the federal real property described in Schedule B.

9.7 Permitted Indemnities or Guarantees. The Authority may issue 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 9.1.

9.8 No Recourse Against Her Majesty. 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.

ARTICLE 10

SUBSIDIARIES

10.1 Power to create a subsidiary. The Authority may incorporate a corporation all of whose shares on incorporation would be held by, on behalf of or in trust for the Authority, for the exercise of the powers and activities described in section 7.3.

10.2 Restriction on Capital Investment. The Authority shall 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:

  1. (a) 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

  2. (b) 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.

10.3 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.

10.4 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.

10.5 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 Federal Identity. The Authority shall:

  1. (a) display the Canadian flag prominently at the port;

  2. (b) display the “Canada” wordmark on a prominent building at the port; and

  3. (c) apply the “Canada” wordmark prominently on all the Authority’s identity applications.

11.2 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

FEDERAL REAL PROPERTY

12.1 Exchange of Federal Real Property. The Authority may exchange any federal real property that it manages for other real property of comparable value, if supplementary letters patent that describe the other property as federal real property have been issued.

12.2 Disposal of Fixtures on Federal Real Property. The Authority may dispose of fixtures on federal real property that it manages.

ISSUED under my hand to be effective the 25th day of January 2012.

_________________________________
The Honourable Denis Lebel, P.C., M.P.
Minister of Transport

SCHEDULE A

OSHAWA PORT AUTHORITY

DESCRIPTION OF NAVIGABLE WATERS

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

OSHAWA PORT AUTHORITY

DESCRIPTION OF FEDERAL REAL PROPERTY

1. All of PIN 16380-0108 (LT)

Being Part of Lot 6, Broken Front Concession, Geographic Township of East Whitby in the City of Oshawa, Regional Municipality of Durham designated as Parts 2, 3 and 4 on a Plan of Survey deposited in the Land Registry Office for the Land Titles Division of Durham as Plan 40R-21634.

2. All of PIN 16380-0105 (LT)

Being Part of Lot 6, Broken Front Concession, Geographic Township of East Whitby in the City of Oshawa, Regional Municipality of Durham designated as Parts 5, 6 and 7 on a Plan of Survey deposited in the Land Registry Office for the Land Titles Division of Durham as Plan 40R-21634.

3. All of PIN 16378-0025 (LT)

Being Part of Lot 5, Broken Front Concession, Geographic Township of East Whitby in the City of Oshawa, Regional Municipality of Durham designated as Parts 1 and 2 on a Plan of Survey deposited in the Land Registry Office for the Land Titles Division of Durham as Plan 40R-21632.

4. All of PIN 16378-0104 (LT)

Being Part of Lots 3, 4, 5 and part of the Road Allowance between Lots 4 and 5, Broken Front Concession, Geographic Township of East Whitby in the City of Oshawa, Regional Municipality of Durham designated as Parts 1 to 9 on a Plan of Survey deposited in the Land Registry Office for the Land Titles Division of Durham as Plan 40R-21635; SAVE and EXCEPT Parts 1, 2 and 3 on Plan 40R-26890.

5. All of PIN 16394-0108 (LT)

Being Part of Lot C-1, Sheet 25, Municipal Plan 335 in the City of Oshawa, Regional Municipality of Durham designated as Part 11 on a Plan of Survey deposited in the Land Registry Office for the Land Titles Division of Durham as Plan 40R-21636.

6. All of PIN 16394-0103 (LT)

Being All of Lot C-3, Sheet 25, Municipal Plan 335 in the City of Oshawa, Regional Municipality of Durham designated as Part 1 on a Plan of Survey deposited in the Land Registry Office for the Land Titles Division of Durham Plan as 40R-21636.

7. All of PIN 16394-0107 (LT)

Being Part of Lot C-7, Sheet 25, Municipal Plan 335 in the City of Oshawa, Regional Municipality of Durham designated as Part 4 on a Plan of Survey deposited in the Land Registry Office for the Land Titles Division of Durham as Plan 40R-21636.

8. All of PIN 16394-0113 (LT)

Being Part of Lot C-7, Sheet 25, Municipal Plan 335 in the City of Oshawa, Regional Municipality of Durham designated as Part 3 on a Plan of Survey deposited in the Land Registry Office for the Land Titles Division of Durham as Plan 40R-21636.

9. All of PIN 16394-0114 (LT)

Being All of Lot C-4, Sheet 25, Municipal Plan 335 in the City of Oshawa, Regional Municipality of Durham designated as Part 2 on a Plan of Survey deposited in the Land Registry Office for the Land Titles Division of Durham as Plan 40R-21636.

10. All of PIN 16394-0208 (LT)

Being All of Lots C-21 and C-22 and Part of Lot C-20, Sheet 27 and Part of Lot C-2, Sheet 25, Municipal Plan 335 in the City of Oshawa, Regional Municipality of Durham designated as Part 6 on a Plan of Survey deposited in the Land Registry Office for the Land Titles Division of Durham as Plan 40R-21636.

11. All of PIN 16394-0116 (LT)

Being Part of Lots C-19 and C-20, Sheet 27, Plan 335 Oshawa as in OS179244; Oshawa and designated as Part 4 on Plan 40R-27129.

12. All of PIN 16394-0115 (LT)

Being Part of Lot C-19, Sheet 27, Plan 335 Oshawa designated as Part 1 on Plan 40R-27129 and Part 1 on Plan 40R-27324.

13. All of PIN 16394-0117 (LT)

Being Part of Lot C-1, Sheet 25, Municipal Plan 335 in the City of Oshawa, Regional Municipality of Durham designated as Part 10 on a Plan of Survey deposited in the Land Registry Office for the Land Titles Division of Durham as Plan 40R-21636.

14. All of PIN 16394-0120 (LT)

Being Part of Lot C-7, Sheet 25, Municipal Plan 335 in the City of Oshawa, Regional Municipality of Durham designated as Part 5 on a Plan of Survey deposited in the Land Registry Office for the Land Titles Division of Durham as Plan 40R-21636.

15. All of PIN 16394-0122 (LT)

Being Part of Lot C-1, Sheet 25, Municipal Plan 335 in the City of Oshawa, Regional Municipality of Durham designated as Part 9 on a Plan of Survey deposited in the Land Registry Office for the Land Titles Division of Durham as Plan 40R-21636.

16. All of PIN 16394-0209 (LT)

Being Part of the Bed of Lake Ontario lying in front of Part of Lot 5, Broken Front Concession, Geographic Township of East Whitby and lying in front of Part of Lot C-2, Sheet 25, Municipal Plan 335 in the City of Oshawa, Regional Municipality of Durham designated as Part 1 on a Plan of Survey deposited in the Land Registry Office for the Land Titles Division of Durham as Plan 40R-21940.

17. All of PIN 16378-0048 (LT)

Being All of Water Lot Location DT-60, being part of the Bed of Lake Ontario lying in front of Part of Lots 2, 3, 4, 5 and 6 and lying in front of the Road Allowance between Lots 2 and 3 and Lots 4 and 5, Broken Front Concession, Geographic Township of East Whitby in the City of Oshawa, Regional Municipality of Durham designated as Part 2 on a Plan of Survey deposited in the Land Registry Office for the Land Titles Division of Durham as Plan 40R-21940.

Note: This Water Lot was transferred from the Province to Her Majesty the Queen in right of Canada “ … so long as Her Majesty requires the said Water Lot Location DT 60 for the purpose of a harbour.”

18. All of PIN 16394-0088 (LT)

Being Part of Lot C-2, Sheet 25, Plan 335 Oshawa and Part of Lots C-19 and C-20, Sheet 27, Plan 335 Oshawa; Oshawa and designated as Part 6 on Plan 40R-27129 and Part 2 on Plan 40R-27324.

SCHEDULE C

OSHAWA PORT AUTHORITY

DESCRIPTION OF REAL PROPERTY OTHER THAN FEDERAL REAL PROPERTY

1. Part of Lot 5 Con Broken Front, Parts 1, 2 and 3 Plan 40R-26890, East Whitby, City of Oshawa.

SCHEDULE D

OSHAWA PORT AUTHORITY

CLASSES OF USERS

Class 1

Major Business Users: an individual or organization that transports passengers or goods to or from the Port of Oshawa on a commercial basis, handles or stores goods on the Port of Oshawa on a commercial basis, or occupies and uses, on a commercial basis, a building or land at the Port of Oshawa owned or managed by the Oshawa Port Authority.

SCHEDULE E

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:

  1. (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;

  2. (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

  3. (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:

  1. (a) “Gift” includes any good, service, benefit, hospitality, promise or favour; and

  2. (b) “Related Party” means with respect to a director or officer of the Authority:

    1. (i) a spouse, child, brother, sister or parent of such director or officer;

    2. (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;

    3. (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

    4. (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:

  1. (a) they have read and understood this Code;

  2. (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

  3. (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:

  1. (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

  2. (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:

  1. (a) they are in compliance with this Code; and

  2. (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:

  1. (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;

  2. (b) Transactions with the Authority or a User; Material Interests: A director or officer or a Related Party:

    1. (i) has a material interest in a user;

    2. (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;

    3. (iii) conducts business with the Authority or a user; or

    4. (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;

  3. (c) Interest in Material Contract: A director or officer:

    1. (i) is a party to a material contract or proposed material contract with the Authority; or

    2. (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

  4. (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:

  1. (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

  2. (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:

  1. (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;

  2. (b) a contract that relates primarily to his or her remuneration as a director, officer, employee or agent of the Authority; and

  3. (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:

  1. (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

  2. (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:

  1. (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;

  2. (b) Withdrawal: resigning the position or withdrawing from the activity or causing the resignation or withdrawal; or

  3. (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:

  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

  2. (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:

  1. (a) whether the director or officer is in a conflict within the meaning of article 2 of this Code;

  2. (b) whether the director or officer has failed to comply with this Code;

  3. (c) whether the conflict has been or will be satisfactorily addressed through:

    1. (i) disclosure by the director or officer;

    2. (ii) the director or officer undertaking one or more of the actions described in section 4.1; or

    3. (iii) the director or officer undertaking actions other than as described in paragraphs 4.3(c)(i) and (ii);

  4. (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:

  1. (a) the Gift is not in the form of cash or cash equivalent;

  2. (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

  3. (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:

  1. (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;

  2. (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

  3. (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.