Canada Gazette, Part I, Volume 153, Number 23: ORDERS IN COUNCIL

June 8, 2019

ORDERS IN COUNCIL

DEPARTMENT OF TRANSPORT

Certificate of amalgamation of port authorities

P.C. 2019-732 May 30, 2019

Her Excellency the Governor General in Council, on the recommendation of the Minister of Transport, pursuant to section 59.1 of the Port Authorities Management Regulations, hereby issues the annexed certificate of amalgamation of the port authorities specified in the certificate.

CERTIFICATE OF AMALGAMATION OF PORT AUTHORITIES

WHEREAS pursuant to Order in Council P.C. 2019-70 a certificate of intent to amalgamate the Hamilton Port Authority and the Oshawa Port Authority was issued on January 31, 2019;

AND WHEREAS the notice requirements pertaining to the certificate of intent to amalgamate set out in subsection 59.1(2) of the Port Authorities Management Regulations have been met;

AND WHEREAS the Minister of Transport has recommended that the Hamilton Port Authority and the Oshawa Port Authority be amalgamated and continue as one port authority to be named the Hamilton-Oshawa Port Authority;

AND WHEREAS, pursuant to paragraph 59.7(k) of the Port Authorities Management Regulations, the letters patent contained in this certificate of amalgamation are the letters patent of the Hamilton-Oshawa Port Authority;

NOW THEREFORE under the authority of section 59.1 of the Port Authorities Management Regulations, it is hereby certified that the Hamilton Port Authority and the Oshawa Port Authority are amalgamated and continue as one port authority to be named the Hamilton-Oshawa Port Authority, effective June 18, 2019.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

That the Governor in Council (GiC) issue a Certificate of Amalgamation for the Canada Port Authorities (CPAs) of Hamilton and Oshawa, pursuant to subsection 59.1(1) of the Port Authorities Management Regulations (PAMR), which permits the Governor in Council to amalgamate two or more port authorities and continue as one port authority.

Objective

To ensure the long-term sustainability of port operations and strengthen the Canadian supply chain in Ontario by providing a coordinated approach to port management, development, land use and marketing.

Background

The Governor in Council (GiC), on the recommendation of the Minister of Transport, issued a certificate of intent to amalgamate these two CPAs on February 9, 2019. The Minister of Transport is amalgamating the Hamilton Port Authority (HPA) and the Oshawa Port Authority (OPA) to form the Hamilton-Oshawa Port Authority (HOPA), effective June 18, 2019.

Canada is a trading nation that relies on its port system. Eighteen CPAs are part of Canada’s national port system. CPAs like the HPA and OPA are non-share capital corporations incorporated under the 1998 Canada Marine Act (CMA) that have been recognized to be of strategic significance to Canada’s trade. CPAs handle approximately 60 percent of Canada’s marine commercial cargo tonnage and contribute over $25 billion to Canada’s gross domestic product. The HPA was established in 2001 and is the largest CPA in Ontario, whereas the OPA, established in 2012, is the smallest CPA both in terms of revenues generated and volume of cargo handled.

A certificate of intent to amalgamate was published in the Canada Gazette, Part I, on February 9, 2019, and signaled the Government of Canada’s interest in amalgamating the HPA and OPA. Consistent with subsection 59.1(2) of the PAMR, a consultation period followed where interested persons were invited to submit their comments. This public consultation period was originally scheduled to end on March 11, 2019. In response to requests by certain stakeholders for additional time to submit their input, Transport Canada extended the duration of the consultation period from 30 to 45 days; bringing the end of the consultation period to March 26, 2019.

Implications

Consideration was given to the following implications of an amalgamation between the HPA and the OPA.

Financial

An amalgamation under the PAMR is administrative in nature and will not represent further financial costs for the Government of Canada or to the Canadian public.

Operations at both ports will continue without disruption as all current contracts and liabilities will continue under an amalgamated port. The amalgamated port is expected to be in a strong financial position, in particular due to the strong financial performance of the HPA. The forecasted performance of the amalgamated port indicates positive growth for the foreseeable future.

Environmental

There are no expected environmental implications, as no changes to the current land holdings, infrastructure, or real property of the HPA and OPA are being made. Provisions have been made to protect a buffer zone that is federal real property and that is adjacent to the Second Marsh Wildlife Area in Oshawa.

Economic

No job losses are expected from the amalgamation of these two CPAs. Rather, amalgamation is expected to strengthen the Lake Ontario transportation corridor by allowing the amalgamated port authority the ability to strategically plan and invest, improve port efficiencies, and leverage key investments as well as connect to global markets and contribute to Canada’s competitiveness. In addition, the amalgamated port authority is expected to be better able to attract long-term investment more strategically, based on the ability to plan from a region wide perspective, and to improve port efficiencies. Continuity of operations at both ports will result in continued direct and indirect economic benefits for surrounding communities.

Consultations

Through a 45-day consultation period, Transport Canada received a total of 26 submissions/inquiries and engaged directly with a variety of stakeholders with an interest in the future of the HPA and the OPA, including Members of Parliament, the province of Ontario, municipalities, each ports’ Board of Directors and management, port users, Indigenous communities, transportation and marine specialists, and the general public.

Overall, stakeholders recognized and/or supported Transport Canada’s rationale for pursuing amalgamation. One of the most common views expressed was a desire for constructive dialogue between stakeholders and the amalgamated port authority to ensure its success. Stakeholders in the Hamilton area were overall supportive. Meanwhile, stakeholders in Oshawa expressed a combination of support and understanding for the proposed amalgamation as well as some concern over the length of the consultation period and the specific business case for amalgamation. Both municipalities expressed their concern that care be given to ensure appropriate municipal representation exist on an amalgamated Board of Directors and economic development under an amalgamated entity not favour one region over another.

Media coverage on the proposed amalgamation appeared balanced and suggested a general agreement that an amalgamated port authority would be able to better leverage available financial, human and operational resources and promote efficiencies within the supply chain.

Transport Canada took into consideration the views raised during the consultation period as it considered whether or not to amalgamate the two port authorities. As a result, measures were taken to address concerns raised during the consultation period, including:

In addition, steps are being taken to ensure an appropriately balanced Board of Directors for the amalgamated port authority that ensures representation from both the municipalities of Hamilton and Oshawa.

Contact

TC.portamalgamation-fusionport.TC@tc.gc.ca

HAMILTON-OSHAWA PORT AUTHORITY

WHEREAS Letters Patent were issued by the Minister of Transport under the authority of the Canada Marine Act (“Act”) for the Hamilton Port Authority (effective May 1, 2001) and the Oshawa Port Authority (effective January 25, 2012);

AND WHEREAS, on the recommendation of the Minister of Transport, the Governor In Council issued a Certificate of Intent to Amalgamate the Hamilton Port Authority and the Oshawa Port Authority to continue as one port authority;

AND WHEREAS the Certificate of Amalgamation continues the Amalgamating Port Authorities as one Port Authority to be named the Hamilton-Oshawa Port Authority;

NOW THEREFORE, pursuant to paragraph 59.7(k) of the Port Authorities Management Regulations, the Letters Patent contained in the Certificate of Amalgamation are the Letters Patent of the Hamilton-Oshawa Port Authority, and are as follows:

ARTICLE 1

EFFECTIVE DATE, DEFINITIONS AND INTERPRETATION

1.1 Effective Date. These Letters Patent take effect on the day specified in the Certificate of Amalgamation.

1.2 Definitions. In these Letters Patent, unless the context otherwise requires, terms used herein shall have the meaning ascribed to such terms in the Act and in addition:

1.3 Conflicts with Act or Regulations. If there is any conflict between the Letters Patent and the Act or Regulations, the Act or Regulations shall prevail.

1.4 Conflicts with By-laws. If there is any conflict between the Letters Patent and the by-laws of the Authority, the Letters Patent shall prevail.

ARTICLE 2

DESCRIPTION OF AUTHORITY

2.1 Name of Authority. The corporate name of the Authority is the Hamilton-Oshawa Port Authority.

2.2 Registered Office of Authority. The registered office of the Authority is located at 605 James Street N, Suite 600, Hamilton, Ontario L8L 1K1.

ARTICLE 3

DESCRIPTIONS OF NAVIGABLE WATERS AND PROPERTY

3.1 Description of Navigable Waters. The description of the navigable waters that are within the jurisdiction of the Authority is set out in Schedule A hereto.

3.2 Description of Federal Real Property. The federal real property that is managed by the Authority is described in Schedule B hereto.

3.3 Description of Real Property other than Federal Real Property. The real property, other than federal real property, held or occupied by the Authority is described in Schedule C hereto.

3.4 Estoppel Respecting Property Descriptions. The descriptions of federal real property, real property other than federal real property and navigable waters referred to in this article shall not be interpreted as a representation, warranty or admission and shall not operate as an estoppel by or against any person, including Her Majesty, in respect of title, including aboriginal title, or any beneficial interest in, or any claim to such property.

ARTICLE 4

DIRECTORS AND DIRECTORS’ MEETINGS

4.1 Number of Directors. The Board shall consist of seven (7) directors.

4.2 Qualifications of Directors. The following individuals may not be directors:

4.3 Quorum for Meeting of Directors. The quorum necessary for the transaction of business at a meeting of the Board shall be a majority of the number of directors in office of which the Authority has actual knowledge of their appointment. A quorum of directors may exercise all powers of the Board.

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

4.5 Committees of the Board. The Board may appoint from among its number one or more committees of the Board, however designated, and delegate to any such committee any of the powers of the Board, except the Board shall not delegate to any committee the power to:

4.5.1 Duties of the Board Respecting Appointment of Directors. The Board shall perform the following functions:

4.6 Nomination Process for User Directors. The classes of users established for the purpose of providing recommendations for nominations for User Directors are listed in Schedule D. The users within Class 1 will recommend potential candidates for one of the User Director positions; the users within Class 2 will recommend potential candidates for two of the User Director positions; and the users within Class 3 will recommend potential candidates for one of the User Director positions.

A permanent Nominating Committee shall be formed and be composed of four members; one person to be appointed by users in Class 1; two persons to be appointed by users in Class 2; and one person to be appointed by users in Class 3.

The chief executive officer of the Authority is not a member of the Nominating Committee, however, the chief executive officer, or such other person who may be designated by the Board in the absence of the chief executive officer, will provide administrative support to the Nominating Committee and the nomination process. If there is a vacant User Director position, or an anticipated vacancy, the chief executive officer, in consultation with the Nominating Committee, shall coordinate the development of a list of potential candidates by administering and facilitating the following process in a timely manner so as to ensure that the length of any User Director vacancy is minimized:

The chief executive officer, in consultation with the Nominating Committee, shall develop and maintain a data base of port users in each class of users.

4.7 Scope of Process. Nothing in the process described in section 4.6 is intended to or shall derogate from, interfere with, or substitute for, any consultation, inquiry, public input or process the Minister chooses to undertake in determining the candidates to be nominated by the Minister pursuant to the provision of paragraph 14(1)(d) of the Act. The Minister, in consultation with users, selected by the Minister or the classes of users mentioned in Schedule D, shall at all times have the flexibility and discretion to nominate as User Directors persons other than those persons recommended by the Nominating Committee to ensure an appropriate mix of the Board members at all times.

4.8 Duties of Directors Respecting Contracting. The directors shall take all necessary measures to ensure:

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:

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:

less Applicable Tax, if any, for the Fiscal Year to which the charge relates.

6.3 Payment of Gross Revenue Charge. The Authority shall pay the Gross Revenue Charge for each Fiscal Year to the Minister no later than ninety (90) days from the end of each Fiscal Year.

6.4 Disclosure Statement. The Authority shall include with every Gross Revenue Charge payment a disclosure statement (the “Disclosure Statement”) in the form prescribed by the Minister from time to time setting forth, inter alia, an itemized list of the sources of revenue comprising the Calculated Gross Revenue and Permitted Exclusions.

6.5 Acceptance of Payment by Minister. The acceptance by the Minister of any Gross Revenue Charge payment made hereunder or the issuance of a certificate of good standing pursuant to section 6.10 in respect of such payment shall not preclude the Minister from disputing the calculation, inclusion or omission of any item in connection with the calculation of such Gross Revenue Charge and adjusting the amount of the Gross Revenue Charge payable by the Authority in a particular Fiscal Year pursuant to section 6.7.

6.6 Audit and Inspection. In addition to any disclosure required under the Act in connection with a special examination respecting the Authority, the Minister shall be entitled at any time to review the books, records, systems and practices of the Authority and Subsidiaries and take copies and extracts from the books and records of the Authority and Subsidiaries for the purposes of verifying the information contained in the Disclosure Statement provided by the Authority and Subsidiaries to the Minister pursuant to section 6.4. The Authority and Subsidiaries shall furnish to the Minister all information in its possession or to which it is entitled to possession that may be required by the Minister in connection with an audit and inspection by the Minister.

6.7 Adjustment of Gross Revenue Charge. If an audit and investigation conducted pursuant to section 6.6 or a review by the Minister of the Disclosure Statement discloses a difference between the amount which in the Minister’s opinion should have been paid by the Authority as Gross Revenue Charge for a particular Fiscal Year and the amount actually paid by the Authority for such Fiscal Year, the Minister may readjust the Gross Revenue Charge payable by the Authority for such Fiscal Year. In the event that the readjustment results in the Authority paying a further amount to the Minister in respect of the Gross Revenue Charge for a particular Fiscal Year, the Minister shall invoice the Authority for such amount. The Authority shall pay the Minister the invoiced amount together with all interest accrued thereon on or before thirty (30) days following the date of receipt of the invoice.

6.8 Set-Off. The Minister shall be entitled to set-off any amount owing to Her Majesty by the Authority against any payment owing to the Authority by the Minister in accordance with the provisions of the Financial Administration Act. If an audit, investigation or review by the Minster contemplated by section 6.7 discloses amounts owed by the Minister to the Authority, the Authority shall be entitled to set-off such amount against any payment owed to the Minister by the Authority.

6.9 Interest on Outstanding Amounts. Interest shall accrue annually on any outstanding balance owing to the Minister in respect of a Gross Revenue Charge payment or on any payment to be made by the Authority or the Minister in connection with a readjustment of a Gross Revenue Charge payment, at the interest rate equal to the prime rate of interest established by the Bank of Canada from time to time plus 2%.

6.10 Certificate of Good Standing. Forthwith, upon receipt from the Authority of the full amount of the Gross Revenue Charge for a particular Fiscal Year, the Minister shall issue to the Authority a certificate of good standing in a form to be determined by the Minister confirming that the Letters Patent are in good standing as of the date of the certificate. Provided there are no amounts owing to the Minister by the Authority under this article 6, including any amounts owed pursuant to an adjustment of the Gross Revenue Charge under section 6.7, the Minister shall, upon request by the Authority at any time during a Fiscal Year, issue a certificate of good standing to the Authority confirming the Letters Patent are in good standing as of the date of the certificate.

ARTICLE 7

ACTIVITIES AND POWERS OF THE AUTHORITY AND SUBSIDIARIES

7.1 Activities of the Authority Related to Certain Port Operations. To operate the port, the Authority may undertake the port activities referred to in paragraph 28(2)(a) of the Act to the extent specified below:

provided that in conducting such activities the Authority shall not enter into or participate in any commitment, agreement or other arrangement whereby the Authority is liable jointly or jointly and severally with any other person for any debt, obligation, claim or liability.

7.2 Activities of the Authority Necessary to Support Port Operations. To operate the port, the Authority may undertake the following activities which are deemed necessary to support port operations pursuant to paragraph 28(2)(b) of the Act:

7.3 Activities of Subsidiaries Necessary to Support of Port Operations. A Subsidiary may undertake the following activities which are deemed necessary to support port operations pursuant to paragraph 28(2)(b) of the Act:

7.4 Restrictions Respecting Federal Real Property. Notwithstanding any other provision of these Letters Patent, the federal real property described in this Article 7.4 paragraph (i) shall be maintained for the purpose of a buffer zone that is respectful of the environment of the Oshawa Second Marsh, and shall not be used for any purpose other than the use made of the federal real property on June 14, 2019.

7.5 Powers of the Authority and Subsidiaries. The Authority has the power to carry out the activities specified in sections 7.1 and 7.2. Subsidiaries have the power to carry out the activities specified in section 7.3.

ARTICLE 8

LEASING AND CONTRACTING

8.1 Restriction on Leasing and Licensing. The Authority shall not grant a lease or licence of real property for a term in excess of 60 years where such lease or licence is granted pursuant to section 7.1(b)(i), 7.1(b)(iii)(A), 7.1(b)(iii)(B), 7.2(c)(i), 7.2(c)(iii)(A) or 7.2(c)(iii)(B) or for a term in excess of 40 years where such lease or licence is granted pursuant to section 7.1(b)(ii), 7.1(b)(iii)(C), 7.1(b)(iii)(D), 7.2(c)(ii), 7.2(c)(iii)(D) or 7.2(c)(iii)(E) provided however that:

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:

8.3 Fair Market Value Requirement. The Authority shall ensure that every lease or license of real property to be entered into following the effective date of the Letters Patent pursuant to which the lessees or licensees carry on uses described in subparagraph 7.1(b)(iii)(C), 7.1(b)(iii)(D), 7.2(c)(iii)(D), 7.2(c)(iii)(E) or activities described in section 7.2 or 7.3 shall be for not less than fair market value provided, however, that with the written consent of the Minister, the Authority may lease or licence such real property for uses described in subparagraph 7.1(b)(iii)(D) or 7.2(c)(iii)(E) at less than fair market value.

8.4 Tendering Requirement Respecting Work Contracts. The Authority shall establish and implement a written policy respecting the entering into by the Authority of any agreement (a “Work Contract”) for the construction, renovation, repair or replacement of a building, structure, facility, work or undertaking, the excavation, filling or development of any real property or the provision of materials in connection therewith. Such policy shall set forth:

ARTICLE 9

BORROWING

9.1 No Borrowing as an Agent. The Authority and any Subsidiaries may not borrow money as an agent of Her Majesty. Every contract for the borrowing of money shall contain an acknowledgement of the lender that it shall have no recourse against Her Majesty or any assets of Her Majesty.

9.2 Restriction on Incurrence of Borrowing. The Authority shall not incur any item of Borrowing so that the aggregate Borrowing of the Authority would exceed $45,500,000.

9.3 Borrowing. “Borrowing” means the following items for the Authority (adjusted to give effect to the provisions of section 9.4), without duplication, as follows:

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

9.5 Certificate of the Authority. Concurrent with the submission of financial statements to the Minister contemplated by subsection 37(4) of the Act, the Authority shall deliver to the Minister a certificate executed by the chief executive officer of the Authority stating:

provided that the Authority may satisfy its obligations pursuant to this section through delivery to the Minister of a copy of the letter delivered to the auditor of the Authority in connection with the annual audit of the financial statements of the Authority which contains substantially the same information as contemplated by this section.

ARTICLE 10

SUBSIDIARIES

10.1 Constating Documents of Subsidiary. The constating documents of every Subsidiary shall state that the Subsidiary cannot exercise any power as an agent of Her Majesty.

10.2 Use of Authority Property and Employees. Prior to a Subsidiary utilizing the property, services, facilities or employees of the Authority in connection with the Subsidiary’s activities or vice versa, the Subsidiary and Authority shall enter into a written agreement whereby the recipient covenants to pay fair market value for use of such property, services, facilities or employees.

10.3 Mandatory Standby Fee. Every Subsidiary shall pay and the Authority shall collect from each Subsidiary a one-time guarantee standby fee for each Permitted Indemnity or Guarantee given by or on behalf of the Authority which fee shall be in an amount not less than one-half of one percent of the maximum dollar amount of such Permitted Indemnity or Guarantee given by the Authority.

10.4 Prohibition on Indemnities. Other than Permitted Guarantees or Indemnities, no guarantee, indemnity or other agreement or commitment may be given by or on behalf of the Authority for the discharge of an obligation or liability of a Subsidiary, whether such obligation or liability be contingent or otherwise.

ARTICLE 11

FEDERAL OBLIGATIONS

11.1 International and Provincial Obligations. The Authority shall comply with all obligations applicable to the Authority arising under any international agreement, convention or arrangement, or any federal-provincial agreement, including:

to which Her Majesty is a party, whether such agreement, convention or arrangement, or federal provincial agreement is entered into before or after the date of issuance of these Letters Patent.

11.2 Federal Identity. The Authority shall:

11.3 Emergency Preparedness. The Authority shall, at the request of the Minister and in accordance with applicable policies established by Her Majesty from time to time, provide all the support required by the Minister to fulfil the responsibilities of the Minister under the Emergency Management Act, S.C. 2007, c. 15.

ARTICLE 12

BY-LAWS

12.1 By-Laws. The directors of the Authority may, by resolution, make, amend or repeal by-laws that regulate the affairs of the Authority or the duties of officers and employees.

ISSUED under my hand to be effective on the day specified in the Certificate of Amalgamation as the day upon which the amalgamation of the Hamilton Port Authority and the Oshawa Port Authority takes effect.

The Honourable Marc Garneau, P.C., M.P.
Minister of Transport

SCHEDULE A

HAMILTON-OSHAWA PORT AUTHORITY

DESCRIPTION OF NAVIGABLE WATERS

PART 1 (Hamilton)

ALL the waters of Hamilton Harbour (formerly Burlington Bay) together with all the inlets thereof, including Cootes Paradise, but excepting Burlington Channel.

PART 2 (Oshawa)

All the waters of Lake Ontario within the following limits: COMMENCING at the high water mark of Lake Ontario where it intercepts the easterly limit of Lot 1 of the broken front concession of the Township of East Whitby; THENCE, along the high water mark in a westerly direction to a point where it intercepts the westerly limit of Lot 17 of the broken front concession of the Township of East Whitby; THENCE, in a southerly direction 3,000 feet into Lake Ontario on the extension of the said westerly limit of Lot 17; THENCE, on a straight line in an easterly direction to a point on a southerly extension of the easterly limit of Lot 1, 3,000 feet from the high water mark; THENCE, in a northerly direction to the point of commencement and all water front property, wharves, piers, docks, buildings, shores and beaches in or along the said waters.

SCHEDULE B

HAMILTON-OSHAWA PORT AUTHORITY

DESCRIPTION OF FEDERAL REAL PROPERTY

PART 1 (Hamilton)

1. All and singular that certain parcel or tract of land situate, lying and being part of the Government Reserve (Canal Reserve), North of the Burlington Canal, in the Geographic Township of Saltfleet, now in the City of Burlington, in the Regional Municipality of Halton and being composed of Parts 1 and 2 on Reference Plan 20R-13281.

2. All and singular that certain parcel or tract of land situate, lying and being part of the Government Reserve (Canal Reserve), South of Burlington Canal, in the Geographic Township of Saltfleet, now in the City of Hamilton, in the Regional Municipality of Hamilton-Wentworth and being composed of Parts 1, 2, 3, 4, 5 and 6 on Reference Plan 62R-15102.

3. Any interests in land, whether or not registered, to the extent that they are interests in land in accordance with the Federal Real Property Act, in any way belonging or appertaining to, or, benefiting, any of the lands described above.

SAVE AND EXCEPT as to all the lands set out above:

PART 2 (Oshawa)

SCHEDULE C

HAMILTON-OSHAWA PORT AUTHORITY

DESCRIPTION OF REAL PROPERTY OTHER THAN FEDERAL REAL PROPERTY

PART 1 (Hamilton)

Note: References to draft Reference Plans in the descriptions hereinbelow, unless otherwise described, relate to the preliminary compiled plans prepared by Ross A. Clarke, O.L.S., of Mackay Mackay & Peters Limited, dated March, 2001, under Project No. 98-031-3R(H), to be maintained on file at the registered office of the Authority.

1. Part of the bed of Hamilton Harbour in front of Lots 14, 15, 16, 17, 18 19 and 20, Concessions 1 and Broken Front, Geographic Township of Barton, Lots 12 and 13, Broken Front Concession, Geographic Township of East Flamborough and Lot 14, Broken Front Concession, Geographic Township of West Flamborough, now in the City of Hamilton, designated as Parts 1, 2, 3, 4 and 5 on sheet no. 3 of the draft Reference Plans.

2. Part of Unnumbered Lot and all of Lots 6 and 7, Block 11, Registered Plan 127 (Sir A.N. MacNab Survey), Geographic Township of Barton, now in the City of Hamilton, designated as Part 1 on Reference Plan 62R-15750.

3. Part of the bed of Hamilton Harbour in front of Lots 10, 11, 12, 13 and 14, Broken Front Concession, Water Lots in front of Lots 10, 11, 12, 13 and 14, Broken Front Concession, Part of Lots 11, 12 and 13, Broken Front Concession, including Part of lot 13, Broken Front Concession, formerly township of Barton, now city of Hamilton, being P.I.N. 17579-0079 (LT) being municipally known as 560 Ferguson Avenue North, Hamilton, Ontario, Part of Lot 12, Concession 1, Part of the Road Allowance between Lots 12 and 13 closed by By-law No. 83-175, registered as Instrument No. 267183AB, all of Lots 1 and 46, Part of Lot 45, Registered Plan 493 (Landsdowne Park Survey), all of Lots 107 to 127, both inclusive, Registered Plan 32 (J.T. Gilkinson Survey), Geographic Township of Barton, now in the City of Hamilton, designated as Parts 1 to 32, both inclusive, on sheet no. 1 of the draft Reference Plans.

4. Part of the Water Lots in front of Lots 9 and 10, Broken Front Concession, Part of Lots 7, 8 and 9, Broken Front Concession, Part of the Road Allowance between Lots 8 and 9, closed by By-law No. 290 (registered as Instrument No. 37 By-law), all of Lots 174 to 203, 230 to 270, 281 to 300, all inclusive, Reserve 5, Part of Lots 204, 205 and Reserve 4, Parts of Ship Street, Land Street, Gilkinson Street, Dickson Street, McKinstry Street and Richie Street (all closed by By-law No. 1028, registered as Instrument No. 208 By-law), Registered Plan 32 (J.T. Gilkinson Survey), Geographic Township of Barton, now in the City of Hamilton, designated as Parts 1 to 21, both inclusive, on sheet no. 2 of the draft Reference Plans.

5. Part of the bed of Hamilton Harbour in front of Lots 9, 10, 11, 12, 13, 14, 15 and 16, Broken Front Concession, Geographic Township of Barton, now in the City of Hamilton, designated as Part 1 on sheet no. 7 of the draft Reference Plans.

6. Part of the bed of Hamilton Harbour in front of Lots 9, 10, 11, 12, 13, 14 and 15, Broken Front Concession, Geographic Township of Barton and Lots 5, 6, 7, 8, 9 and 10, Broken Front Concession, Water Lot in front of Lot 7, Broken Front Concession, Geographic Township of East Flamborough, now in the City of Hamilton, designated as Part 1 on sheet no. 8 of the draft Reference Plans.

7. Part of the bed of Hamilton Harbour in front of Lots 3, 4, 5, 6, 7, 8 and 9, Broken Front Concession, Geographic Township of Barton, now in the City of Hamilton, designated as Part 1 on sheet no. 9 of the draft Reference Plans.

8. Part of the bed of Hamilton Harbour in front of Lots 1, 2, 3, 4 and 5, Broken Front Concession, Geographic Township of East Flamborough, now in the City of Hamilton, designated as Part 1 on sheet no. 10 of the draft Reference Plans.

9. Part of the bed of Hamilton Harbour adjoining Burlington Beach, Geographic Township of Saltfleet and in front of Registered Plan 614 (Inglehaven Survey), Geographic Township of East Flamborough, the Water Lot in front of Registered Plan 97 (Filmans Survey), Part of Lot 10 and Block A, Registered Plan 97 (Filmans Survey), Part of Block 2, Registered Plan 47 (J.S. McMurray’s Survey), Geographic Township of Nelson, now in the City of Burlington, Regional Municipality of Halton, designated as Parts 1 to 8, both inclusive, and Parts 10 to 16, both inclusive, on sheet no. 11 of the draft Reference Plans provided that as to Parts 10, 11 and 12, the same are included herein to the extent of any right, title and interest heretofore held by The Hamilton Harbour Commissioners, and such inclusion is without prejudice to any right, title and interest of Her Majesty the Queen in right of Canada in said Parts.

10. Part of the bed of Hamilton Harbour adjoining Burlington Beach and part of Burlington Beach, west side of Beach Boulevard, South of the Canal Reserve, Geographic Township of Saltfleet, now in the City of Hamilton, designated as Parts 1, 2, 3, 4, 5, 6, 7, 8 and 9 on sheet no. 6 of the draft Reference Plans, provided that as to Parts 1, 2, 3 and 9, the same are included herein to the extent of any right, title and interest heretofore held by The Hamilton Harbour Commissioners, and such inclusion is without prejudice to any right, title and interest of Her Majesty the Queen in right of Canada in said Parts.

11. Part of the bed of Hamilton Harbour adjoining Burlington Beach and part of Burlington Beach, Geographic township of Saltfleet, now in the City of Hamilton, designated as Parts 1 to 9, both inclusive, on sheet no. 5 of the draft Reference Plans.

12. Part of the bed of Hamilton Harbour and Water Lots in front of Lot 1, Broken Front Concession, Geographic township of Barton, Lots 31, 32, 33 and 34, Broken Front Concession, Geographic Township of Saltfleet, Part of Lots 33 and 34, Broken Front Concession and Burlington Beach, Part of Lot 1, Registered Plan 440 (R. Fletcher Survey), Geographic Township of Saltfleet, Part of Lot 1, Broken Front Concession, Geographic Township of Barton, now in the City of Hamilton, designated as Parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 on sheet 4 of the draft Reference Plans.

EXCEPT:

1. Parts 4, 5, and 7, Plan 62R-15661, City of Hamilton

13. Concession Broken Front Barton Part Lots 7 and 8 [BTN HAM], Part Closed Road Allowance, more Specifically Described as Parts 3, 4, 5, 11 and 12 on Reference Plan 62R-15207, known municipally as 450 Sherman Avenue North, in the City of Hamilton.

14. PIN 17575-0020, designated as Part 1 on Plan 62R-10465 in the land registration system of Ontario.

15. PIN 17576-0061 (R) and 17576-0062 (R):

16. PIN 17251-0032 (LT), shown as Part 1 on Plan 62R-19863 in the land registration system of Ontario.

17. Pier 22, also known and designated as the Rod Mill Lands Property, legal description:

PIN 17574-0018 (R) and part of PIN 17574-0001 (R) as registered in the land registration system of Ontario.

Part of Lots 1 and 2 Broken Front Concession and Part of the Water Lot lying in front of Lots 1 and 2, Broken Front Concession.

Formerly in the Township of Barton, now in the City of Hamilton.

Designated as Parts 1 to 28 both inclusive on Plan 62R-17462.

Together with a right of way over Part of Lot 1 Concession Broken Front designated as Part 29, 30, 31 and 32 on 62R-17462 as in AB23568, registered August 17, 1966.

Subject to a right of way in favour of CNR over Part of Lot 1 Concession Broken Front, former Township of Barton designated as Parts 11, 19, 20 to 28 both inclusive on 62R-17462 as in NS178118, registered November 1, 1950.

Subject to a right of way in favour of Jarvis B. Webb Company of Canada, its successors and assigns over Part of Lots 1 and 2 Concession Broken Front, former Township of Barton designated as Part 23 on 62R-17462 as in HL23053, registered September 16, 1957 as renewed by VM260064, registered March 17, 2004.

Subject to an easement in favour of City of Hamilton over Part of Lot 1 and 2 Concession Broken Front, former Township of Barton designated as Parts 4, 5 and 6 on 62R-17462 as in HL292195, registered November 2, 1964.

Subject to a right of way in favour of Jarvis B. Webb Company of Canada Ltd. over Part of Lot 1 Concession Broken Front, former Township of Barton designated as Parts 10, 11, 12, 13 and 14 on 62R-17462 as in CD267807, registered December 20, 1983.

Subject to an Easement in favour of Union Gas Ltd. over Part of Lot 1 Concession Broken Front, former Township of Barton designated as Part 13 and 16 on 62R-17462 as in CD391982, registered December 18, 1986.

SAVE AND EXCEPT any federal real property included in the foregoing.

Easements, Rights of Way and Leaseholds
Document Parties Real Property Affected
(a) Transfer/Deed of Land dated September 26, 1994, registered September 28, 1994 as 194802VM conveying certain lands together with rights and easements relating to spur lines, water and sewer pipes, use of existing services and access.

Grantor: Case Canada Corporation
Grantee: The Hamilton Harbour Commissioners

Parts 1, 2, 3, 12, 14, 18, 19 and 21, Reference Plan 62R-13125 and Parts 7 and 10, Reference Plan 62R-8011.
(b) Transfer/Deed of Land dated September 25, 1998, registered October 2, 1998 as 243272VM conveying certain lands together with a right relating to spur lines.

Grantor: Case Canada Corporation
Grantee: The Hamilton Harbour Commissioners

Part 21, Reference Plan 62R-13125 and Part 10, Reference Plan 62R-8011.
(c) Lease dated September 27, 1965 as amended by a Supplementary Agreement dated February 17, 1977.

Lessor: Her Majesty the Queen represented by Minister of National Defence
Lessee: The Hamilton Harbour Commissioners

A triangular shaped parcel of H.M.C.S. Star property at the foot of Catherine Street.
(d) Ground Lease dated November 24, 2000.

Lessor: The Corporation of the City of Hamilton Lessee: The Hamilton Harbour Commissioners

Parts 12, 13, 20, 31 to 41, both inclusive, Reference Plan 62R-15663.
(e) Ground Lease dated November 24, 2000.

Lessor: The Corporation of the City of Hamilton Lessee: The Hamilton Harbour Commissioners

Parts 4, 5, 8, 17, 21, 45 and 50, Reference Plan 62R-15663.
(f) Ground Lease dated November 24, 2000.

Lessor: Her Majesty the Queen in right of Canada as represented by the Minister of Canadian Heritage
Lessee: The Hamilton Harbour Commissioners

Parts 10, 11, 14, 18, 19, 46, 47 and 51, Reference Plan 62R-15663.

PART 2 (Oshawa)

1. PIN 16378-0105 (LT), designated as Parts 1, 2 and 3 on Plan 40R-26890 in the land registration system of Ontario.

SCHEDULE D

HAMILTON-OSHAWA PORT AUTHORITY

CLASSES OF USERS

SCHEDULE E

HAMILTON-OSHAWA PORT AUTHORITY

CODE OF CONDUCT

ARTICLE 1

OBJECTS AND INTERPRETATION

1.1 Object of Code. The object of this Code is to enhance public confidence in the integrity and impartiality of directors and officers of the Authority and the business activities and transactions carried on by the Authority by establishing clear conflict of interest rules for directors and officers of the Authority.

1.2 Principles. This Code shall be interpreted in accordance with the following general principles:

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:

1.4 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:

1.7 Timing of Acknowledgement. Each director and officer shall deliver the acknowledgement described in section 1.6 of this Code to the Board:

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:

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:

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:

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:

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:

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:

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:

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:

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:

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:

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.