Vol. 148, No. 11 — May 21, 2014

Registration

SOR/2014-104 May 5, 2014

CANADA TRANSPORTATION ACT

Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings)

The Canadian Transportation Agency, pursuant to section 17 of the Canada Transportation Act (see footnote a), makes the annexed Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings).

Gatineau, April 29, 2014

GEOFFREY C. HARE
Chairperson
Canadian Transportation Agency

SAM BARONE
Vice-Chairperson
Canadian Transportation Agency

TABLE OF CONTENTS

(This table is not part of the Rules.)

CANADIAN TRANSPORTATION AGENCY RULES (DISPUTE PROCEEDINGS AND CERTAIN RULES APPLICABLE TO ALL PROCEEDINGS)

INTERPRETATION

1. Definitions

APPLICATION

2. Dispute proceedings

ALL PROCEEDINGS

3. Quorum

4. Principle of proportionality

DISPUTE PROCEEDINGS

GENERAL

Interpretation and Dispensing with Compliance

5. Interpretation of Rules

6. Dispensing with compliance and varying rule

Filing of Documents and Sending of Copy to Parties

7. Filing

8. Copy to parties

9. Means of transmission

10. Facsimile — cover page

11. Electronic transmission

12. Filing after time limit

Language of Documents

13. English or French

Amended Documents

14. Substantive amendment

Verification by Affidavit or by Witnessed Statement

15. Verification of contents

Representation and Change of Contact Information

16. Representative not a member of the bar

17. Change of contact information

PLEADINGS

Application

18. Filing of application

Answer

19. Filing of answer

Reply

20. Filing of reply

Intervention

21. Filing of intervention

22. Response to intervention

Position Statement

23. Filing of position statement

Written Questions and Production of Documents

24. Notice

Expedited Process

25. Decision to apply expedited process

Close of Pleadings

26. Normal process

REQUESTS

General Request

27. Filing of request

Specific Requests

Request for Expedited Process

28. Expedited process

Request to Intervene

29. Request to intervene

Request to Extend or Shorten Time Limit

30. Extend or shorten

Request for Confidentiality

31. Confidential treatment

Request to Require Party to Provide Complete Response

32. Requirement to respond

Request to Amend Document

33. Amendment

Request to File Document Whose Filing is not Otherwise Provided for in Rules

34. Filing

Request to Withdraw Document

35. Withdrawal of document

Request to Withdraw Application

36. Withdrawal of application

CASE MANAGEMENT

37. Formulation of issues

38 Preliminary determination

39. Joining of applications

40. Conference

41. Stay of dispute proceeding

42. Notice of intention to dismiss application

TRANSITIONAL PROVISION, REPEAL AND COMING INTO FORCE

TRANSITIONAL PROVISION

43. SOR/2005-35

REPEAL

44. Canadian Transportation Agency General Rules

COMING INTO FORCE

45. June 4, 2014

SCHEDULE 1

TRANSLATION — REQUIRED INFORMATION

SCHEDULE 2

VERIFICATION BY AFFIDAVIT

SCHEDULE 3

VERIFICATION BY WITNESSED STATEMENT

SCHEDULE 4

AUTHORIZATION OF REPRESENTATIVE

SCHEDULE 5

APPLICATION

SCHEDULE 6

ANSWER TO APPLICATION

SCHEDULE 7

REPLY TO ANSWER

SCHEDULE 8

INTERVENTION

SCHEDULE 9

RESPONSE TO INTERVENTION

SCHEDULE 10

POSITION STATEMENT

SCHEDULE 11

WRITTEN QUESTIONS OR REQUEST FOR DOCUMENTS

SCHEDULE 12

RESPONSE TO WRITTEN QUESTIONS OR REQUEST FOR DOCUMENTS

SCHEDULE 13

REQUEST

SCHEDULE 14

RESPONSE TO REQUEST

SCHEDULE 15

REPLY TO RESPONSE TO REQUEST

SCHEDULE 16

REQUEST TO INTERVENE

SCHEDULE 17

REQUEST FOR CONFIDENTIALITY

SCHEDULE 18

REQUEST FOR DISCLOSURE

CANADIAN TRANSPORTATION AGENCY RULES (DISPUTE PROCEEDINGS AND CERTAIN RULES APPLICABLE TO ALL PROCEEDINGS)

INTERPRETATION

Definitions

1. The following definitions apply in these Rules.

“Act”
« Loi »

“Act” means the Canada Transportation Act.

“affidavit”
« affidavit »

“affidavit” means a written statement confirmed by oath or a solemn declaration.

“applicant”
« demandeur »

“applicant” means a person that files an application with the Agency.

“application”
« demande »

“application” means a document that is filed to commence a proceeding before the Agency under any legislation or regulations that are administered in whole or in part by the Agency.

“business day”
« jour ouvrable »

“business day” means a day that the Agency is ordinarily open for business.

“dispute proceeding”
« instance de règlement des différends »

“dispute proceeding” means any contested matter that is commenced by application to the Agency.

“document”
« document »

“document” includes any information that is recorded in any form.

“intervener”
« intervenant »

“intervener” means a person whose request to intervene filed under section 29 has been granted.

“party”
« partie »

“party” means an applicant, a respondent or a person that is named by the Agency as a party.

“person”
« personne »

“person” includes a partnership and an unincorporated association.

“proceeding”
« instance »

“proceeding” means any matter that is commenced by application to the Agency, whether contested or not.

“respondent”
« défendeur »

“respondent” means a person that is named as a respondent in an application and any person that is named by the Agency as a respondent.

APPLICATION

Dispute proceedings

2. Subject to sections 3 and 4, these Rules apply to dispute proceedings other than a matter that is the subject of mediation.

ALL PROCEEDINGS

Quorum

3. In all proceedings, one member constitutes a quorum.

Principle of proportionality

4. The Agency is to conduct all proceedings in a manner that is proportionate to the importance and complexity of the issues at stake and the relief claimed.

DISPUTE PROCEEDINGS

GENERAL

Interpretation and Dispensing with Compliance

Interpretation of Rules

5. (1) These Rules are to be interpreted in a manner that facilitates the most expeditious determination of every dispute proceeding, the optimal use of Agency and party resources and the promotion of justice.

Agency’s initiative

(2) Anything that may be done on request under these Rules may also be done by the Agency of its own initiative.

Dispensing with compliance and varying rule

6. The Agency may, at the request of a person, dispense with compliance with or vary any rule at any time or grant other relief on any terms that will allow for the just determination of the issues.

Filing of Documents and Sending of Copy to Parties

Filing

7. (1) Any document filed under these Rules must be filed with the Secretary of the Agency.

Agency’s public record

(2) All filed documents are placed on the Agency’s public record unless the person filing the document files, at the same time, a request for confidentiality under section 31 in respect of the document.

Copy to parties

8. A person that files a document must, on the same day, send a copy of the document to each party or, if a party is represented, to the party’s representative, except if the document is

• (a) a confidential version of a document in respect of which a request for confidentiality is filed under section 31;
• (b) an application; or
• (c) a position statement.

Means of transmission

9. Documents may be filed with the Agency and copies may be sent to the other parties by courrier, personal delivery, email, facsimile or other electronic means specified by the Agency.

Facsimile — cover page

10. A person that files or sends a document by facsimile must include a cover page indicating the total number of pages transmitted, including the cover page, and the name and telephone number of a contact person if problems occur in the transmission of the document.

Electronic transmission

11. (1) A document that is sent by email, facsimile or other electronic means is considered to be filed with the Agency and received by the other parties on the date of its transmission if it is sent at or before 5:00 p.m. Gatineau local time on a business day. A document that is sent after 5:00 p.m. Gatineau local time or on a day that is not a business day is considered to be filed with the Agency and received by the other parties on the next business day.

Courier or personal delivery

(2) A document that is sent by courier or personal delivery is filed with the Agency and received by the other parties on the date of its delivery if it is delivered to the Agency and the other parties at or before 5:00 p.m. Gatineau local time on a business day. A document that is delivered after 5:00 p.m. Gatineau local time or on a day that is not a business day is considered to be filed with the Agency and received by the other parties on the next business day.

Filing after time limit

12. (1) A person must not file a document after the end of the applicable time limit for filing the document unless a request has been filed under subsection 30(1) and the request has been granted by the Agency.

Filing not provided for in Rules

(2) A person must not file a document whose filing is not provided for in these Rules unless a request has been filed under subsection 34(1) and the request has been granted by the Agency.

Failure to comply

(3) A document that is filed in contravention of subsection (1) or (2) will not be placed on the Agency’s record.

Language of Documents

English or French

13. (1) Every document filed with the Agency must be in either English or French.

Translation

(2) If a person files a document that is in a language other than English or French, they must at the same time file an English or French translation of the document and the information referred to in Schedule 1.

Treated as original

(3) The translation is treated as the original for the purposes of the dispute proceeding.

Amended Documents

Substantive amendment

14. (1) If a person proposes to make a substantive amendment to a previously filed document, they must file a request under subsection 33(1).

Identification of amendment

(2) A person that files a document that amends a previously filed document, whether the amendment is substantive or not, must ensure that the amendment is clearly identified in the document and that the word “AMENDED” appears in capital letters in the top right corner of the first page.

Verification by Affidavit or by Witnessed Statement

Verification of contents

15. (1) If the Agency considers it just and reasonable, the Agency may, by notice, require that a person provide verification of the contents of all or any part of a document by affidavit or by witnessed statement.

Filing of verification

(2) The verification by affidavit or by witnessed statement must be filed within five business days after the date of the notice referred to in subsection (1) and must include the information referred to in Schedule 2 or Schedule 3, respectively.

Failure to file verification

(3) The Agency may strike the document or the part of the document in question from the Agency’s record if the person fails to file the verification.

Representation and Change of Contact Information

Representative not a member of the bar

16. A person that is represented in a dispute proceeding by a person that is not a member of the bar of a province must authorize that person to act on their behalf by filing the information referred to in Schedule 4.

Change of contact information

17. A person must, if the contact information they provided to the Agency changes during the course of a dispute proceeding, provide their new contact information to the Agency and the parties without delay.

PLEADINGS

Application

Filing of application

18. (1) Any application filed with the Agency must include the information referred to in Schedule 5.

Application complete

(2) If the application is complete, the parties are notified in writing that the application has been accepted.

Incomplete application

(3) If the application is incomplete, the applicant is notified in writing and the applicant must provide the missing information within 20 business days after the date of the notice.

Closure of file

(4) If the applicant fails to provide the missing information within the time limit, the file is closed.

New application

(5) An applicant whose file is closed may file a new application in respect of the same matter.

Answer

Filing of answer

19. A respondent may file an answer to the application. The answer must be filed within 15 business days after the date of the notice indicating that the application has been accepted and must include the information referred to in Schedule 6.

Reply

Filing of reply

20. (1) An applicant may file a reply to the answer. The reply must be filed within five business days after the day on which they receive a copy of the answer and must include the information referred to in Schedule 7.

No new issues

(2) The reply must not raise issues or arguments that are not addressed in the answer or introduce new evidence unless a request has been filed to that effect and the request has been granted by the Agency.

Intervention

Filing of intervention

21. (1) An intervener may file an intervention. The intervention must be filed within five business days after the day on which their request to intervene is granted by the Agency and must include the information referred to in Schedule 8.

Participation rights

(2) An intervener’s participation is limited to the participation rights granted by the Agency.

Response to intervention

22. An applicant or a respondent that is adverse in interest to an intervener may file a response to the intervention. The response must be filed within five business days after the day on which they receive a copy of the intervention and must include the information referred to in Schedule 9.

Position Statement

Filing of position statement

23. (1) An interested person may file a position statement. The position statement must be filed before the close of pleadings and must include the information referred to in Schedule 10.

No participation rights

(2) A person that files a position statement has no participation rights and is not entitled to receive any notice in the dispute proceeding.

Written Questions and Production of Documents

Notice

24. (1) A party may, by notice, request that any party that is adverse in interest respond to written questions that relate to the matter in dispute or produce documents that are in their possession or control and that relate to the matter in dispute. The notice must include the information referred to in Schedule 11 and must be filed

• (a) in the case of written questions, before the close of pleadings; and
• (b) in the case of the production of documents, within five business days after the day on which the party becomes aware of the documents or before the close of pleadings, whichever is earlier.

Response to notice

(2) The party to which a notice has been given must, within five business days after the day on which they receive a copy of the notice, file a complete response to each question or the requested documents, as the case may be, accompanied by the information referred to in Schedule 12.

Objection

(3) If a party wishes to object to a question or to producing a document, that party must, within the time limit set out in subsection (2), file an objection that includes

• (a) a clear and concise explanation of the reasons for the objection including, as applicable, the relevance of the information or document requested and their availability for production;
• (b) any document that is relevant in explaining or supporting the objection; and
• (c) any other information or document that is in the party’s possession or control and that would be of assistance to the party making the request.

Expedited Process

Decision to apply expedited process

25. (1) The Agency may, at the request of a party under section 28, decide that an expedited process applies to an answer under section 19 and a reply under section 20 or to any request filed under these Rules.

Time limits for filing — answer and reply

(2) If an expedited process applies to an answer under section 19 and a reply under section 20, the following time limits apply:

• (a) the answer must be filed within five business days after the date of the notice indicating that the application has been accepted; and
• (b) the reply must be filed within three business days after the day on which the applicant receives a copy of the answer.
  

Time limits for filing — request

(3) If an expedited process applies to a request filed under these Rules, the following time limits apply:

• (a) any response to a request must be filed within two business days after the day on which the person who is responding to the request receives a copy of the request; and
• (b) any reply to a response must be filed within one business day after the day on which the person who is replying to the response receives a copy of the response.

Close of Pleadings

Normal process

26. (1) Subject to subsection (2), pleadings are closed

• (a) if no answer is filed, 20 business days after the date of the notice indicating that the application has been accepted;
• (b) if an answer is filed and no additional documents are filed after that answer, 25 business days after the date of the notice indicating that the application has been accepted; or
• (c) if additional documents are filed after an answer is filed, the day on which the last document is to be filed under these Rules.
  

Expedited process

(2) Under the expedited process, pleadings are closed

• (a) if no answer is filed, seven business days after the date of the notice indicating that the application has been accepted;
• (b) if an answer is filed and no additional documents are filed after that answer, 10 business days after the date of the notice indicating that the application has been accepted; or
• (c) if additional documents are filed after an answer is filed, the day on which the last document is to be filed under these Rules.
  

REQUESTS

General Request

Filing of request

27. (1) A person may file a request for a decision on any issue that arises within a dispute proceeding and for which a specific request is not provided for under these Rules. The request must be filed as soon as feasible but, at the latest, before the close of pleadings and must include the information referred to in Schedule 13.

Response

(2) Any party may file a response to the request. The response must be filed within five business days after the day on which they receive a copy of the request and must include the information referred to in Schedule 14.

Reply

(3) The person that filed the request may file a reply to the response. The reply must be filed within two business days after the day on which they receive a copy of the response and must include the information referred to in Schedule 15.

No new issues

(4) The reply must not raise issues or arguments that are not addressed in the response or introduce new evidence unless a request has been filed to that effect and the request has been granted by the Agency.

Specific Requests

Request for Expedited Process

Expedited process

28. (1) A party may file a request to have an expedited process applied to an answer under section 19 and a reply under section 20 or to another request filed under these Rules. The request must include the information referred to in Schedule 13.

Justification for request

(2) The party filing the request must demonstrate to the satisfaction of the Agency that adherence to the time limits set out in these Rules would cause them financial or other prejudice.

Time limit for filing

(3) The request must be filed

• (a) if the request is to have an expedited process apply to an answer and a reply,
  • (i) in the case of an applicant, at the time that the application is filed, or
  • (ii) in the case of a respondent, within one business day after the date of the notice indicating that the application has been accepted; or
• (b) if the request is to have an expedited process apply to another request,
  • (i) in the case of a person filing the other request, at the time that that request is filed, or
  • (ii) in the case of a person responding to the other request, within one business day after the day on which they receive a copy of that request.

Response

(4) Any party may file a response to the request. The response must be filed within one business day after the day on which they receive a copy of the request and must include the information referred to in Schedule 14.

Reply

(5) The party that filed the request may file a reply to the response. The reply must be filed within one business day after the day on which they receive a copy of the response and must include the information referred to in Schedule 15.

No new issues

(6) The reply must not raise issues or arguments that are not addressed in the response or introduce new evidence unless a request has been filed to that effect and the request has been granted by the Agency.

Request to Intervene

Request to intervene

29. (1) A person that has a substantial and direct interest in a dispute proceeding may file a request to intervene. The request must be filed within 10 business days after the day on which the person becomes aware of the application or before the close of pleadings, whichever is earlier, and must include the information referred to in Schedule 16.

Limits and conditions

(2) If the Agency grants the request, it may set limits and conditions on the intervener’s participation in the dispute proceeding.

Request to Extend or Shorten Time Limit

Extend or shorten

30. (1) A person may file a request to extend or shorten a time limit that applies in respect of a dispute proceeding. The request may be filed before or after the end of the time limit and must include the information referred to in Schedule 13.

Response

(2) Any party may file a response to the request. The response must be filed within three business days after the day on which they receive a copy of the request and must include the information referred to in Schedule 14.

Reply

(3) The person that filed the request may file a reply to the response. The reply must be filed within one business day after the day on which they receive a copy of the response and must include the information referred to in Schedule 15.

No new issues

(4) The reply must not raise issues or arguments that are not addressed in the response or introduce new evidence unless a request has been filed to that effect and the request has been granted by the Agency.

Request for Confidentiality

Confidential treatment

31. (1) A person may file a request for confidentiality in respect of a document that they are filing. The request must include the information referred to in Schedule 17 and must be accompanied by, for each document identified as containing confidential information,

• (a) one public version of the document from which the confidential information has been redacted; and
• (b) one confidential version of the document that identifies the confidential information that has been redacted from the public version of the document and that includes, at the top of each page, the words: “CONTAINS CONFIDENTIAL INFORMATION” in capital letters.

Agency’s record

(2) The request for confidentiality and the public version of the document from which the confidential information has been redacted are placed on the Agency’s public record. The confidential version of the document is placed on the Agency’s confidential record pending a decision of the Agency on the request for confidentiality.

Request for disclosure

(3) Any party may oppose a request for confidentiality by filing a request for disclosure. The request must be filed within five business days after the day on which they receive a copy of the request for confidentiality and must include the information referred to in Schedule 18.

Response to request for disclosure

(4) The person that filed the request for confidentiality may file a response to a request for disclosure. The response must be filed within three business days after the day on which they receive a copy of the request for disclosure and must include the information referred to in Schedule 14.

Agency’s decision

(5) The Agency may

• (a) if the Agency determines that the document is not relevant to the dispute proceeding, decide to not place the document on the Agency’s record;
• (b) if the Agency determines that the document is relevant to the dispute proceeding and that no specific direct harm would likely result from its disclosure or that any demonstrated specific direct harm is not sufficient to outweigh the public interest in having it disclosed, decide to place the document on the Agency’s public record; or
• (c) if the Agency determines that the document is relevant to the dispute proceeding and that the specific direct harm likely to result from its disclosure justifies confidentiality,
  • (i) decide to confirm the confidentiality of the document or any part of it and keep the document or part of the document on the Agency’s confidential record,
  • (ii) decide to place a version of the document or any part of it from which the confidential information has been redacted on the Agency’s public record,
  • (iii) decide to keep the document or any part of it on the Agency’s confidential record but require that the person requesting confidentiality provide a copy of the document or part of the document in confidence to any party to the dispute proceeding, or to certain of their advisors, experts and representatives, as specified by the Agency, after the person requesting confidentiality has received a signed undertaking of confidentiality from the person to which the copy is to be provided, or
  • (iv) make any other decision that it considers just and reasonable.
    

Filing of undertaking of confidentiality

(6) The original copy of the undertaking of confidentiality must be filed with the Agency.

Request to Require Party to Provide Complete Response

Requirement to respond

32. (1) A party that has given notice under subsection 24(1) may, if they are not satisfied with the response to the notice or if they wish to contest an objection to their request, file a request to require the party to which the notice was directed to provide a complete response. The request must be filed within two business days after the day on which they receive a copy of the response to the notice or the objection, as the case may be, and must include the information referred to in Schedule 13.

Agency’s decision

(2) The Agency may do any of the following:

• (a) require that a question be answered in full or in part;
• (b) require that a document be provided;
• (c) require that a party submit secondary evidence of the contents of a document;
• (d) require that a party produce a document for inspection only;
• (e) deny the request in whole or in part.

Request to Amend Document

Amendment

33. (1) A person may, before the close of pleadings, file a request to make a substantive amendment to a previously filed document. The request must include the information referred to in Schedule 13 and a copy of the amended document that the person proposes to file.

Response

(2) Any party may file a response to the request. The response must be filed within three business days after the day on which they receive a copy of the request and must include

• (a) the information referred to in Schedule 14; and
• (b) a description of any prejudice that would be caused to the party if the request were granted including, if applicable, an explanation of how the proposed amendments would hinder or delay the fair conduct of the dispute proceeding.
  

Reply

(3) The person that filed the request may file a reply to the response. The reply must be filed within one business day after the day on which they receive a copy of the response and must include the information referred to in Schedule 15.

No new issues

(4) The reply must not raise issues or arguments that are not addressed in the response or introduce new evidence unless a request has been filed to that effect and the request has been granted by the Agency.

Agency’s decision

(5) The Agency may

• (a) deny the request; or
• (b) approve the request in whole or in part and, if the Agency considers it just and reasonable to do so, provide parties that are adverse in interest with an opportunity to respond to the amended document.

Request to File Document Whose Filing is not Otherwise Provided for in Rules

Filing

34. (1) A person may file a request to file a document whose filing is not otherwise provided for in these Rules. The request must include the information referred to in Schedule 13 and a copy of the document that the person proposes to file.

Response

(2) Any party may file a response to the request. The response must be filed within three business days after the day on which they receive a copy of the request and must include

• (a) the information referred to in Schedule 14; and
• (b) a description of any prejudice that would be caused to the party if the request were granted including, if applicable, an explanation of how the proposed filing would hinder or delay the fair conduct of the dispute proceeding.
  

Reply

(3) The person that filed the request may file a reply to the response. The reply must be filed within one business day after the day on which they receive a copy of the response and must include the information referred to in Schedule 15.

No new issues

(4) The reply must not raise issues or arguments that are not addressed in the response or introduce new evidence unless a request has been filed to that effect and the request has been granted by the Agency.

Agency’s decision

(5) The Agency may

• (a) deny the request; or
• (b) approve the request and, if pleadings are closed and if the Agency considers it just and reasonable to do so, reopen pleadings to provide the other parties with an opportunity to comment on the document.

Request to Withdraw Document

Withdrawal of document

35. (1) Subject to section 36, a person may file a request to withdraw any document that they filed in a dispute proceeding. The request must be filed before the close of pleadings and must include the information referred to in Schedule 13.

Terms and conditions

(2) If the Agency grants the request, it may impose any terms and conditions on the withdrawal that it considers just and reasonable, including the awarding of costs.

Request to Withdraw Application

Withdrawal of application

36. (1) An applicant may file a request to withdraw their application. The request must be filed before a final decision is made by the Agency in respect of the application and must include the information referred to in Schedule 13.

Terms and conditions

(2) If the Agency grants the request, it may impose any terms and conditions on the withdrawal that it considers just and reasonable, including the awarding of costs.

CASE MANAGEMENT

Formulation of issues

37. The Agency may formulate the issues to be considered in a dispute proceeding in any of the following circumstances:

• (a) the documents filed do not clearly identify the issues;
• (b) the formulation would assist in the conduct of the dispute proceeding;
• (c) the formulation would assist the parties to participate more effectively in the dispute proceeding.

Preliminary determination

38. The Agency may, at the request of a party, determine that an issue should be decided as a preliminary question.

Joining of applications

39. The Agency may, at the request of a party, join two or more applications and consider them together in one dispute proceeding to provide for a more efficient and effective process.

Conference

40. (1) The Agency may, at the request of a party, require the parties to attend a conference by a means of telecommunication or by personal attendance for the purpose of

• (a) encouraging settlement of the dispute;
• (b) formulating, clarifying or simplifying the issues;
• (c) determining the terms of amendment of any document;
• (d) obtaining the admission of certain facts or determining whether the verification of those facts by affidavit should be required;
• (e) establishing the procedure to be followed in the dispute proceeding;
• (f) providing for the exchange by the parties of documents proposed to be submitted;
• (g) establishing a process for the identification and treatment of confidential information;
• (h) discussing the appointment of experts; and
• (i) resolving any other issues to provide for a more efficient and effective process.

Written submissions

(2) The parties may be required to file written submissions on any issue that is discussed at the conference.

Minutes

(3) Minutes are prepared in respect of the conference and placed on the Agency’s record.

Agency decision or direction

(4) The Agency may issue a decision or direction on any issue discussed at the conference without further submissions from the parties.

Stay of dispute proceeding

41. (1) The Agency may, at the request of a party, stay a dispute proceeding in any of the following circumstances:

• (a) a decision is pending on a preliminary question in respect of the dispute proceeding;
• (b) a decision is pending in another proceeding or before any court in respect of an issue that is the same as or substantially similar to one raised in the dispute proceeding;
• (c) a party to the dispute proceeding has not complied with a requirement of these Rules or with a procedural direction issued by the Agency;
• (d) the Agency considers it just and reasonable to do so.
  

Stay of decision or order

(2) The Agency may, at the request of a party, stay a decision or order of the Agency in any of the following circumstances:

• (a) a review or re-hearing is being considered by the Agency under section 32 of the Act;
• (b) a review is being considered by the Governor in Council under section 40 of the Act;
• (c) an application for leave to appeal is made to the Federal Court of Appeal under section 41 of the Act;
• (d) the Agency considers it just and reasonable to do so.
  

Stay — terms and conditions

(3) In staying a dispute proceeding or a decision or order, the Agency may impose any terms and conditions that it considers to be just and reasonable.

Notice of intention to dismiss application

42. (1) The Agency may, by notice to the applicant and before considering the issues raised in the application, require that the applicant justify why the Agency should not dismiss the application if the Agency is of the preliminary view that

• (a) the Agency does not have jurisdiction over the subject matter of the application;
• (b) the dispute proceeding would constitute an abuse of process; or
• (c) the application contains a fundamental defect.
  

Response

(2) The applicant must respond to the notice within 10 business days after the date of the notice, failing which the application may be dismissed without further notice.

Opportunity to comment

(3) The Agency may provide any other party with an opportunity to comment on whether or not the application should be dismissed.

TRANSITIONAL PROVISION, REPEAL AND COMING INTO FORCE

TRANSITIONAL PROVISION

SOR/2005-35

43. The Canadian Transportation Agency General Rules, as they read immediately before the coming into force of these Rules, continue to apply to all proceedings before the Agency that were commenced before the coming into force of these Rules except proceedings in respect of which the application filed before that time was not complete.

REPEAL

44. The Canadian Transportation Agency General Rules (see footnote 1) are repealed.

COMING INTO FORCE

June 4, 2014

45. These Rules come into force on June 4, 2014, but if they are published after that day, they come into force on the day on which they are published.

SCHEDULE 1
(Subsection 13(2))

TRANSLATION — REQUIRED INFORMATION

1. The applicant’s name, the respondent’s name and the file number assigned by the Agency.

2. The name of the person filing the documents and, if the information has not already been provided to the Agency, the person’s complete address, telephone number and, if applicable, email address and facsimile number.

3. A list of the translated documents that indicates, for each document, the language of the original document.

4. An affidavit of the translator that includes

• (a) the translator’s name and the city or town, the province or state and the country in which the document was translated;
• (b) an attestation that the translator has translated the document in question and that the translation is, to the translator’s knowledge, true, accurate and complete;
• (c) the translator’s signature and the date on which and the place at which the affidavit was signed; and
• (d) the signature and the official seal of the person authorized to take affidavits and the date on which and the place at which the affidavit was made.

5. The name of each party to which a copy of the documents is being sent and the complete address, the email address or the facsimile number to which it is being sent.

SCHEDULE 2
(Subsection 15(2))

VERIFICATION BY AFFIDAVIT

1. The applicant’s name, the respondent’s name and the file number assigned by the Agency.

2. The name of the person filing the documents and, if the information has not already been provided to the Agency, the person’s complete address, telephone number and, if applicable, email address and facsimile number.

3. An affidavit that includes

• (a) the name of the person making the affidavit and the city or town, the province or state and the country in which it was made;
• (b) a full description of the information being verified, a list of any supporting documents and a copy of each of those documents marked as appendices;
• (c) an attestation that the person has personal knowledge of the information and that the information is, to their knowledge, true, accurate and complete or, if the person does not have personal knowledge of the information, a statement indicating the source of the information and an attestation that the information is, to their knowledge, true, accurate and complete;
• (d) the person’s signature and the date of signing; and
• (e) the signature and the official seal of a person authorized to take affidavits and the date on which and the place at which the affidavit was made.

4. The name of each party to which a copy of the verification is being sent and the complete address, the email address or the facsimile number to which it is being sent.

SCHEDULE 3
(Subsection 15(2))

VERIFICATION BY WITNESSED STATEMENT

1. The applicant’s name, the respondent’s name and the file number assigned by the Agency.

2. The name of the person filing the documents and, if the information has not already been provided to the Agency, the person’s complete address, telephone number and, if applicable, email address and facsimile number.

3. A statement before a witness that includes

• (a) the name of the person making the statement and the city or town and the province or state and the country in which it was made;
• (b) a full description of the information being verified, a list of any supporting documents and a copy of each of those documents marked as appendices;
• (c) an attestation that the person has personal knowledge of the information and that the information is, to their knowledge, true, accurate and complete or, if the person does not have personal knowledge of the information, a statement indicating the source of the information and an attestation that the information is, to their knowledge, true, accurate and complete;
• (d) the person’s signature and the date of signing; and
• (e) the name and signature of the person witnessing the statement and the date on which and place at which the statement was signed.

4. The name of each party to which a copy of the verification is being sent and the complete address, the email address or the facsimile number to which it is being sent.

SCHEDULE 4
(Section 16)

AUTHORIZATION OF REPRESENTATIVE

1. The applicant’s name, the respondent’s name and the file number assigned by the Agency.

2. The name of the person giving the authorization and, if the information has not already been provided to the Agency, the person’s complete address, telephone number and, if applicable, email address and facsimile number.

3. The name of the person’s representative and the representative’s complete address, telephone number and, if applicable, email address and facsimile number.

4. A statement, signed and dated by the representative, indicating that the representative has agreed to act on behalf of the person.

5. A statement, signed and dated by the person giving the authorization, indicating that they authorize the representative to act on their behalf for the purposes of the dispute proceeding.

6. The name of each party to which a copy of the authorization is being sent and the complete address, the email address or the facsimile number to which it is being sent.

SCHEDULE 5
(Subsection 18(1))

APPLICATION

1. The applicant’s name, complete address, telephone number and, if applicable, email address and facsimile number.

2. If the applicant is represented by a member of the bar of a province, the representative’s name, firm, complete address, telephone number and, if applicable, email address and facsimile number.

3. If the applicant is represented by a person that is not a member of the bar of a province, a statement to that effect.

4. The respondent’s name and, if known, their complete address, telephone number and, if applicable, email address and facsimile number.

5. The details of the application that include

• (a) any legislative provisions that the applicant relies on;
• (b) a clear statement of the issues;
• (c) a full description of the facts;
• (d) the relief claimed; and
• (e) the arguments in support of the application.
  

6. A list of any documents submitted in support of the application and a copy of each of those documents.

SCHEDULE 6
(Section 19)

ANSWER TO APPLICATION

1. The applicant’s name, the respondent’s name and the file number assigned by the Agency.

2. The respondent’s name, complete address, telephone number and, if applicable, email address and facsimile number.

3. If the respondent is represented by a member of the bar of a province, the representative’s name, firm, complete address, telephone number and, if applicable, email address and facsimile number.

4. If the respondent is represented by a person that is not a member of the bar of a province, a statement to that effect.

5. The details of the answer that include

• (a) a statement that sets out the elements that the respondent agrees with or disagrees with in the application;
• (b) a full description of the facts; and
• (c) the arguments in support of the answer.

6. A list of any documents submitted in support of the answer and a copy of each of those documents.

7. The name of each party to which a copy of the answer is being sent and the complete address, the email address or the facsimile number to which it is being sent.

SCHEDULE 7
(Subsection 20(1))

REPLY TO ANSWER

1. The applicant’s name, the respondent’s name and the file number assigned by the Agency.

2. The name of the person filing the reply.

3. The details of the reply that include

• (a) a statement that sets out the elements that the applicant agrees with or disagrees with in the answer; and
• (b) the arguments in support of the reply.

4. A list of any documents submitted in support of the reply and a copy of each of those documents.

5. The name of each party to which a copy of the reply is being sent and the complete address, the email address or the facsimile number to which it is being sent.

SCHEDULE 8
(Subsection 21(1))

INTERVENTION

1. The applicant’s name, the respondent’s name and the file number assigned by the Agency.

2. The intervener’s name, complete address, telephone number and, if applicable, email address and facsimile number.

3. If the intervener is represented by a member of the bar of a province, the representative’s name, firm, complete address, telephone number and, if applicable, email address and facsimile number.

4. If the intervener is represented by a person that is not a member of the bar of a province, a statement to that effect.

5. The details of the intervention that include

• (a) a statement that indicates the day on which the intervener became aware of the application;
• (b) a statement that indicates whether the intervener supports the applicant’s position, the respondent’s position or neither position; and
• (c) the information that the intervener would like the Agency to consider.

6. A list of any documents submitted in support of the intervention and a copy of each of those documents.

7. The name of each party to which a copy of the intervention is being sent and the complete address, the email address or the facsimile number to which it is being sent.

SCHEDULE 9
(Section 22)

RESPONSE TO INTERVENTION

1. The applicant’s name, the respondent’s name and the file number assigned by the Agency.

2. The name of the person filing the response.

3. The details of the response that include

• (a) a statement that sets out the elements that the person agrees with or disagrees with in the intervention; and
• (b) the arguments in support of the response.

4. A list of any documents submitted in support of the response and a copy of each of those documents.

5. The name of each party to which a copy of the response is being sent and the complete address, the email address or the facsimile number to which it is being sent.

SCHEDULE 10
(Subsection 23(1))

POSITION STATEMENT

1. The applicant’s name, the respondent’s name and the file number assigned by the Agency.

2. The name of the person filing the position statement or, if the person is represented, the name of the person on behalf of which the position statement is being filed, and the person’s complete address, telephone number and, if applicable, email address and facsimile number.

3. If the person is represented by a member of the bar of a province, the representative’s name, firm, complete address, telephone number and, if applicable, email address and facsimile number.

4. If the person is represented by a person that is not a member of the bar of a province, a statement to that effect.

5. The details of the position statement that include

• (a) a statement that indicates whether the person supports the applicant’s position, the respondent’s position or neither position; and
• (b) the information that the person would like the Agency to consider.

6. A list of any documents submitted in support of the position statement and a copy of each of those documents.

SCHEDULE 11
(Subsection 24(1))

WRITTEN QUESTIONS OR REQUEST FOR DOCUMENTS

1. The applicant’s name, the respondent’s name and the file number assigned by the Agency.

2. The name of the person filing the written questions or the request for documents and, if the information has not already been provided to the Agency, the person’s complete address, telephone number and, if applicable, email address and facsimile number.

3. The name of the party to which the written questions or the request for documents is directed.

4. A list of the written questions or of the documents requested, as the case may be, and an explanation of their relevance to the dispute proceeding.

5. A list of any documents submitted in support of the written questions or the request for documents and a copy of each of those documents.

6. The name of each party to which a copy of the written questions or the request for documents is being sent and the complete address, the email address or the facsimile number to which it is being sent.

SCHEDULE 12
(Subsection 24(2))

RESPONSE TO WRITTEN QUESTIONS OR REQUEST FOR DOCUMENTS

1. The applicant’s name, the respondent’s name and the file number assigned by the Agency.

2. The name of the person filing the response to the written questions or the request for documents.

3. A list of the documents produced.

4. A list of any documents submitted in support of the response and a copy of each of those documents.

5. The name of each party to which a copy of the response is being sent and the complete address, the email address or the facsimile number to which it is being sent.

SCHEDULE 13
(Subsections 27(1), 28(1), 30(1), 32(1), 33(1), 34(1), 35(1) and 36(1))

REQUEST

1. The applicant’s name, the respondent’s name and the file number assigned by the Agency.

2. The name of the person filing the request and, if the information has not already been provided to the Agency, the person’s complete address, telephone number and, if applicable, email address and facsimile number.

3. The details of the request that include

• (a) the relief claimed;
• (b) a summary of the facts; and
• (c) the arguments in support of the request.

4. A list of any documents submitted in support of the request and a copy of each of those documents.

5. The name of each party to which a copy of the request is being sent and the complete address, the email address or the facsimile number to which it is being sent.

SCHEDULE 14
(Subsections 27(2), 28(4), 30(2) and 31(4) and paragraphs 33(2)(a) and 34(2)(a))

RESPONSE TO REQUEST

1. The applicant’s name, the respondent’s name and the file number assigned by the Agency.

2. The name of the person filing the response.

3. An identification of the request to which the person is responding, including the name of the person that filed the request.

4. The details of the response that include

• (a) a statement that sets out the elements that the person agrees with or disagrees with in the request; and
• (b) the arguments in support of the response.

5. A list of any documents submitted in support of the response and a copy of each of those documents.

6. The name of each party to which a copy of the response is being sent and the complete address, the email address or the facsimile number to which it is being sent.

SCHEDULE 15
(Subsections 27(3), 28(5), 30(3), 33(3) and 34(3))

REPLY TO RESPONSE TO REQUEST

1. The applicant’s name, the respondent’s name and the file number assigned by the Agency.

2. The name of the person filing the reply.

3. An identification of the response to which the person is replying, including the name of the person that filed the response.

4. The details of the reply that include

• (a) a statement that sets out the elements that the person agrees with or disagrees with in the response; and
• (b) the arguments in support of the reply.

5. A list of any documents submitted in support of the reply and a copy of each of those documents.

6. The name of each party to which a copy of the reply is being sent and the complete address, the email address or the facsimile number to which it is being sent.

SCHEDULE 16
(Subsection 29(1))

REQUEST TO INTERVENE

1. The applicant’s name, the respondent’s name and the file number assigned by the Agency.

2. The name of the person that wishes to intervene in the dispute proceeding, their complete address, telephone number and, if applicable, email address and facsimile number.

3. If the person is represented by a member of the bar of a province, the representative’s name, firm, complete address, telephone number and, if applicable, email address and facsimile number.

4. If the person is represented by a person that is not a member of the bar of a province, a statement to that effect.

5. The details of the request that include

• (a) a demonstration of the person’s substantial and direct interest in the dispute proceeding;
• (b) a statement specifying the date on which the person became aware of the application;
• (c) a statement that indicates whether the person supports the applicant’s position, the respondent’s position or neither position; and
• (d) a statement of the participation rights that the person wishes to be granted in the dispute proceeding.

6. A list of any documents submitted in support of the request and a copy of each of those documents.

7. The name of each party to which a copy of the request is being sent and the complete address, the email address or the facsimile number to which it is being sent.

SCHEDULE 17
(Subsection 31(1))

REQUEST FOR CONFIDENTIALITY

1. The applicant’s name, the respondent’s name and the file number assigned by the Agency.

2. The name of the person filing the request and, if the information has not already been provided to the Agency, the person’s complete address, telephone number and, if applicable, email address and facsimile number.

3. The details of the request that include

• (a) an identification of the document or the portion of the document that contains confidential information;
• (b) a list of the parties, if any, with which the person would be willing to share the document; and
• (c) the arguments in support of the request, including an explanation of the relevance of the document to the dispute proceeding and a description of the specific direct harm that could result from the disclosure of the confidential information.

4. A list of any documents submitted in support of the request and a copy of each of those documents.

5. The name of each party to which a copy of the request is being sent and the complete address, the email address or the facsimile number to which it is being sent.

SCHEDULE 18
(Subsection 31(3))

REQUEST FOR DISCLOSURE

1. The applicant’s name, the respondent’s name and the file number assigned by the Agency.

2. The name of the person filing the request.

3. The details of the request that include

• (a) an identification of the documents for which the party is requesting disclosure;
• (b) a list of the individuals who need access to the documents; and
• (c) an explanation as to the relevance of the documents for which disclosure is being requested and the public interest in its disclosure.

4. A list of any documents submitted in support of the request and a copy of each of those documents.

5. The name of each party to which a copy of the request is being sent and the complete address, the email address or the facsimile number to which it is being sent.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Issues

The Canadian Transportation Agency (the Agency) has used the Canadian Transportation Agency General Rules, SOR/2005-35 (the General Rules) to establish procedures for both dispute adjudications and economic determinations. However, this has resulted in rules of procedure that are overly broad, difficult for parties without legal representation to understand and, at times, inefficient. While the Agency has always had full discretion under the General Rules to adopt different procedures on a case-by-case basis and is required to use these powers regularly to craft customized procedures that are efficient and effective in individual cases, this ad hoc approach has not provided the predictability and clarity that the Agency’s clients and stakeholders expect.

Background

The Agency is an independent, quasi-judicial tribunal. It makes decisions and determinations on a wide range of matters involving modes of transportation under the authority of Parliament, as set out in the Canada Transportation Act, S.C. 1996, c. 10 (CTA). The Agency’s vision is a competitive and accessible national transportation system that fulfills the needs of Canadians and the Canadian economy.

The Agency’s mission is to be a respected and trusted tribunal and economic regulator through efficient dispute resolution and essential economic regulation.

The Agency’s values include integrity, fairness, transparency and quality of service. The Agency is committed to expand client-oriented resources and develop new ones to facilitate access to dispute resolution services.

Objectives

The Agency has the power under section 17 of the CTA to establish its own rules of procedure and the courts have been deferential to the Agency’s procedural decisions, continually affirming that the Agency is the master of its own procedures.

Accordingly, and as part of its effort to ensure that its services are timely, effective, responsive, fair and transparent, the Agency is implementing new Rules entitled the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings) [the Rules], the objectives of which are as follows:

• To modernize and streamline the Agency’s procedures for dispute adjudication;
• To enhance the clarity, transparency and predictability of the formal adjudication process in dispute proceedings;
• To improve the efficiency of case processing; and
• To better inform and assist persons who do not have legal representation or commercial parties that are first-time users of the Agency’s processes.

Description

The Agency is repealing the General Rules and putting in place the new Rules. The Rules introduce the following main changes:

• 1. The use of schedules that incorporate specific information requirements to improve the completeness of filings with the Agency and assist applicants in providing the information required;
• 2. A standard pleadings process of 20 business days and an expedited pleadings process of 8 business days for the filing of any answers and replies after the notice of acceptance of a complete application or 3 business days for the filing of any responses and replies in relation to a request;
• 3. An emphasis on the use of electronic means of filing documents with the Agency;
• 4. Limiting the application of the Rules to dispute proceedings, except for sections 3 and 4 concerning the Agency’s quorum and the principle of proportionality, which apply to all proceedings before the Agency; and
• 5. The introduction of a full range of provisions addressing common requests made to the Agency in the course of dispute proceedings to simplify the process and raise the awareness of persons interacting with the Agency of common matters to be addressed.
  

It is noted that during a transitional period after the coming into force of the Rules, the General Rules will continue to apply to all proceedings before the Agency that are commenced before the coming into force of these Rules unless the application filed before that time was not complete.

“One-for-One” Rule

The “One-for-One” Rule does not apply to these Rules, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply as the Rules would not increase administrative or compliance burden on small business.

Consultation

The Agency launched, on November 13, 2012, its consultation on the revisions to the General Rules. Interested parties were given until December 21, 2012, to submit their comments. The Agency received eight written submissions from industry and consumers. In addition, six meetings were held with targeted transportation service provider and related stakeholders.

The following section addresses the main substantive comments received during the consultation process and explains how these comments were taken into account.

Comments resulting in substantial changes to the Rules

Use of forms

At the time of consultation, the Agency proposed the introduction of 28 mandatory forms. One form was provided as an example.

Several stakeholders commented on the Agency’s proposed use of mandatory forms. Stakeholders indicated that the introduction of 28 mandatory forms might complicate matters and may represent an unnecessary hurdle for unrepresented parties. A comment was also made that while forms might be useful in handling certain applications, such as those concerning lost luggage, they may be less effective in handling rail complaints. Concerns were also raised that forms may leave little room for describing facts. Finally, it was suggested that form numbering should correspond to rule numbers for ease of reference.

Following receipt of these comments, the Agency created online forms whose use is now voluntary and whose numbering matches those of the schedules. The Agency has also reduced the number of forms accompanying the Rules to 18.

In order to ensure that the forms leave sufficient room for describing the facts, issues, arguments and relief, the online forms have no space limitations. In addition, the Agency has developed specific forms that will be available to be used in particular disputes, including disability-related applications and noise and vibration applications. Although the use of forms will not be mandatory, it is believed that with these changes, the forms will be an important client-focused resource for persons in their interactions with the Agency and will improve the efficiency of case processing by assisting people to ensure that the Agency receives all of the information that it requires to make its decisions.

In order to address the Agency’s ongoing concerns about the incompleteness of the information that it receives in dispute proceedings and the time that it takes to address this issue, the Agency has developed 18 schedules to the Rules, which outline the required content of different documents that may be filed with the Agency. While persons are not required to use the forms, the schedules set out specific information requirements to improve the completeness of filings with the Agency. The Agency has numbered the schedules and provided references in each schedule to the applicable sections of the Rules. The Agency will release resource tools to assist people in using the Rules which will include links to the related forms.

Facilitation and mediation

The proposed Rules contained a section stating that, at any time in a dispute proceeding, the Agency may request that the parties participate in facilitation or mediation to help settle a dispute or any issue in a dispute where this would lead to a more effective and efficient resolution of any of the issues in dispute.

Comments from stakeholders on this provision were mixed. While some welcomed the Agency’s approach of requesting mediation, others expressed a concern that the Agency’s role as an impartial adjudicator should be kept separate from its new role as a promoter and facilitator of alternative dispute resolution. Other stakeholders expressed concern that the section might purport to confer upon the Agency a power to compel parties to participate in mediation. One stakeholder indicated that a section allowing the Agency to compel parties to participate in mediation is ultra vires the Agency’s powers.

Although the intent of the section was not to compel parties to participate in facilitation or mediation as this remains a voluntary process, the Agency has removed these references from the Rules given that the focus of the Rules is on the adjudication of disputes. However, the Agency will continue to promote alternative dispute resolution mechanisms as successful and efficient client-focused processes, and has thus retained the reference to encouraging the settlement of disputes through both adjudication and alternative dispute resolution mechanisms.

Guidelines

The Agency proposed a section stating that it may establish guidelines for the processing of specific proceedings. This section met with mixed reaction from stakeholders. While one stakeholder favoured the use of guidelines to streamline the Rules, others expressed concern that the Agency is attempting to give guidelines a binding effect or to circumvent rule- and regulation-making requirements.

The Agency has removed this section from the Rules.

Reopening a decision or order of the Agency

The proposed Rules contained a section that addressed situations in which the Agency might reopen a decision or order. Several stakeholders provided comments on this section, and questioned the content and procedures set out in the proposed provision.

The Agency has removed this section from the Rules.

Applications

In addition to commenting that it is unclear when the time limit for providing an answer to an application would begin to run, stakeholders indicated that respondent contact information is not always available and parties should not be required to copy the respondent on an originating document.

Parties will be notified when the application has been accepted as complete and the date on which the pleadings process begins. This notification will also provide the respondents with clear information on when their answers are due.

The Rules will not require an applicant to send a copy of their application to the respondent. Applications should be filed with the Agency and respondents will receive a copy along with the notice that the application has been accepted as complete.

Request for expedited pleadings process

Some stakeholders commented that the Agency should clarify the circumstances under which such a process would be available, or that it should only be available where there is a demonstrated necessity for such a process. One stakeholder asked whether the expedited process would entail an expedited decision-making process. Another stakeholder commented that a time limit of one day to respond to a request for an expedited process has the potential of abuse against unrepresented parties.

The Rules specify the documents to which an expedited process may apply, namely to an answer, a reply or any request filed under the Rules. The Agency has indicated when requests for an expedited process must be filed.

Following the consultation, the Rules now indicate that the party filing a request for an expedited process must demonstrate that adherence to the time limits set out in the Rules would cause them financial or other prejudice. Finally, the Agency has provided for a right of response and reply in relation to requests for an expedited process.

This provision is consistent with the most efficient processing of disputes and recognizes that certain matters demand shorter pleadings timeframes.

Removal of oral hearings provisions

Three stakeholders commented on the removal of Part III of the General Rules relating to oral hearings. They commented that the Agency should maintain a set of rules applicable to oral hearings as the Agency may benefit from the option of an oral hearings process.

While Part III of the General Rules set out procedures applicable to oral hearings, the provisions did not adequately address the procedural steps involved in an oral hearing process, and therefore, these provisions were not carried over in the Rules. However, the Rules will apply to disputes that proceed by way of oral hearing. In addition, the Agency may establish guidelines in relation to oral hearings and may further establish the procedures and time limits that will apply to each proceeding to be heard by way of oral hearing. This case-by-case approach is consistent with past practice in disputes before the Agency that have proceeded by way of oral hearing.

Comments not resulting in substantial changes to the Rules

Time limits

Seven stakeholders objected to the shortened time limits for filing pleadings. Concerns were that the shorter time limits sacrifice fairness and quality of pleadings and decisions in favour of expediency; that the Agency will receive more requests for extensions of time resulting in higher Agency workload; that the time limits are insufficient for complex cases; and that the time limits create a substantial barrier for unrepresented parties.

Stakeholders suggested that, if the shortened time limits are adopted, the Agency should improve communication as to when proceedings commence, and that time limits should start to run from the time that the Agency has provided notice of the completeness of an application and, in the case of the time limit for filing a request to intervene, from the time that the Agency posted the application on its Web site. A stakeholder also suggested that extensions by consent of the parties should be considered.

The Agency has adopted a change in the time limits for filing documents in a dispute proceeding — 15 business days rather than 30 calendar days to file an answer and 5 business days rather than 10 calendar days to file a reply. The time limits for filing pleadings in relation to requests have also been shortened.

The Agency considers that the time limits set out in the Rules should be adequate in most low and medium complexity disputes given instantaneous communication. In August 2012, industry and consumer stakeholders were informed of a change in Agency practice whereby filing time limits would be shortened to 21 and 7 calendar days for answers and replies respectively. This practice has been in effect for nearly two years without any reported problems. The time limits for filing an answer and a reply to applications provided for in the Rules are roughly equivalent to the current time limits being applied by the Agency.

Persons filing documents always have the opportunity to request an extension of time under section 30 where the complexity of the file or some other justification makes the time limits inadequate.

In the past, there has been some confusion as to whether an application was complete, and therefore should be answered by the respondent. The existing section simply states that an answer is to be filed “within 30 days after receiving it.” This confusion has now been addressed under the Rules in that an answer is to be filed within 15 business days after the date of the notice indicating that the application has been accepted.

In order to further assist parties, the Agency has defined the term “business day” in the Rules and is providing an annotation to explain how time will be calculated and which days are holidays for the Agency. Finally, and in keeping with current practice, wherever possible, the Agency will identify deadlines by the specific date on which the deadline falls, thus eliminating confusion around the calculation of deadlines.

Requests to intervene

Several stakeholders were concerned that the Agency is introducing a new test of “substantial and direct interest,” and that potential interveners may have difficulty meeting this test. They argue that this will have a negative impact on lobby groups, trade organizations, industry and shipper associations, railway companies, unions and municipalities.

One stakeholder commented that imposing an obligation to apply for intervener status is an undue obstacle, whereas another commented that it is a breach of the duty of fairness not to provide a right of reply to a request to intervene.

Finally, there was a concern with the time limit of 10 business days to file an intervention once a person becomes aware of an application. It was noted that the Agency’s Web site is not always updated and that the posting of applications is not always consistent.

The new Rules, and use of the term “substantial and direct interest,” provide for greater clarity as to who may be an intervener in a dispute proceeding. The intent is not to impose a new test but to clarify an existing test that has been applied by the Agency in its decisions.

The process for intervention is now a two-step process in which a potential intervener must first make a request to intervene and may only file an intervention if the Agency grants the request. Under the General Rules, a person simply filed an intervention without the Agency first making a determination as to their intervener status. The right to respond to interventions has been carried over from the General Rules, however, the new approach represents an improvement in that it ensures that parties only respond to interventions filed by Agency-approved interveners.

In order to facilitate awareness of applications, the Agency intends to ensure the timely posting of applications on its Web site when the new Rules come into effect.

Position statements

Stakeholders commented on the addition of a rule relating to position statements. There were various concerns raised, namely that persons may be discouraged from filing position statements as they may be required to answer questions or produce documents and they may not have the desire or resources to do so; that this will take procedural rights from the parties as there is no automatic right to cross-examine on a position statement; and that unrepresented parties with limited resources will be disadvantaged by being forced to respond to position statements while having no avenue to recover costs from the authors of those position statements.

Section 23 of the Rules resembles section 46 of the General Rules respecting “interested persons” and clarifies expectations by confirming that a person filing a position statement receives no further participation rights or notice in the dispute proceeding.

One important feature of administrative law is the ability of tribunals to take into consideration, in their decision-making, broader public views and interests, where appropriate. This section is intended to provide interested persons with a simple, transparent and effective way to make their views known to the Agency. From the Agency’s perspective, it is necessary to have a streamlined process for the receipt of this type of material, so that the public’s right to make its views known is respected, but in a manner that is not resource intensive for either the Agency or the parties.

The filing of a position statement is, in most cases, the extent of a person’s participation in a file. Position statements are typically just that, a statement of an individual’s position on a matter, whether they support or oppose an application. On occasion, position statements are submitted in the form of petitions signed by large numbers of individuals. In the Agency’s experience, it is generally sufficient that these statements be placed on the record as evidence of public interest in a matter and there is no need for the parties to respond to these statements or to conduct any follow-up in the way of questions or document requests.

Less frequently, persons may have information that is relevant and necessary to the Agency, but they may wish to limit their participation in the proceeding. They, too, may use a position statement to bring this information forward; however, the Agency may decide to ask questions or make a request that further documents be submitted if necessary. Furthermore, although there is no automatic right to respond to a position statement, if a party wants to respond to a position statement that contains relevant and necessary information, they may seek permission to do so from the Agency pursuant to section 34 of the Rules.

Questions or document requests between parties

Several stakeholders commented on this proposed provision. Among the comments received, stakeholders expressed concern for the time limits for responding to a notice of written questions or a document request. Stakeholders further commented that subjecting a document request “after the party becomes aware of the document” could result in a series of cascading deadlines for parties. In addition, a stakeholder commented that it was unclear what efficiencies would be gained from allowing for a notice to be sent at any time prior to the close of pleadings, and that the Agency should consider providing for an interrogatory phase. One stakeholder suggested adopting a principle of proportionality in relation to these requests.

The time limits for providing a notice of written questions or the production of documents between parties, as well as the time limits for responding to such a notice, have been retained from the proposed provision following the consultation. The Agency considers the time limit for providing notice to be fair, and that the time limit for responding should be adequate in most low and medium complexity disputes.

The General Rules do not limit the time for questions or document requests in any way. This has resulted in inefficiencies as parties attempt to continue this phase after the close of pleadings. The new time limits have been introduced in order to clarify that the time for questions and document requests should be limited to the period when pleadings are open. Also, there should be no further exchange of documents or information after the close of pleadings and while the Agency is deliberating, except in exceptional circumstances and with the approval of the Agency.

Should further time be required to provide a response, the party responding always has the opportunity to request an extension of time.

The Agency has included a proportionality provision in a section that applies to all proceedings before the Agency.

Close of pleadings

Two stakeholders commented on the close of pleadings. One stakeholder commented that the close of pleadings might be affected if there are confidentiality claims. The other commented that it would be helpful if the Agency provided a letter stating that pleadings are closed.

The Agency has maintained the close of pleadings time limits. The automatic closure of pleadings includes a cushion of five days to allow for parties to make decisions about whether they will pose questions, request the production of documents or make other requests to the Agency.

The intention is to have the pleadings automatically close within an established time limit. However, the Agency has the power to vary the date for the close of pleadings to allow for outstanding matters to be resolved before the close of pleadings. Parties will be notified once pleadings have closed. In addition, this information will be reflected in the status of cases on the Agency’s Web site.

Request for confidentiality

Two stakeholders commented on the confidentiality provision. One expressed concern that the requirement to present “specific direct harm” imposed a standard that is too high and that cannot be met. Concern was also expressed that section 26 of the General Rules, which creates a broad presumption of confidentiality for financial and corporate information, should be retained.

The test set out in the Rules is the same as the test set out and applied by the Agency under the General Rules.

As an economic regulator, the Agency receives a large quantity of confidential financial and corporate information that it uses in its uncontested economic determinations. Section 26 of the General Rules was required to address the confidentiality of this information in light of the fact that the General Rules applied to both dispute proceedings and non-dispute proceedings. Section 26 is not required in rules for dispute adjudication.

In dispute proceedings, each party is entitled to know and test the case being made by the other party, including the evidence being produced by the other party. This entitlement is subject to limited exceptions, for example, where one party can show that disclosure of its confidential information would cause specific direct harm to it that is not outweighed by the public interest in having it disclosed. This is the test currently applied by the Agency in determining claims for confidentiality and this test will continue under the Rules.

Notice of intention to dismiss an application

Three stakeholders commented on this provision, indicating that what is meant by “fundamental defect” is unclear; that the rights of parties to make submissions in respect of a notice of intention to summarily dismiss an application should be clarified; and that the provision should be expanded to include cases where the requested remedy is based upon identical or closely similar facts and arguments that have already been extensively litigated before the Agency.

The Agency has maintained this provision following consultation as it supports the efficient use of resources. The Agency acknowledges that there is not an automatic right of participation for other parties, and anticipates that this mechanism may be used before the respondent becomes involved in the proceeding. The Agency will determine, on a case-by-case basis, if a right to participate is appropriate and should be given to other parties.

Rationale

One of the key tools the Agency has used in carrying out its mandate as an independent, quasi-judicial tribunal is the General Rules. The General Rules set out the overall procedures, processes and timelines applied by the Agency.

The Agency is committed to providing high quality services that are timely, efficient and responsive. This is a key corporate strategic plan priority for 2014–2017. In this regard, the Agency has adopted a set of performance targets that are monitored and publicly reported on an annual basis.

The General Rules have been in place since 2005. Through the Agency’s experience in applying them, and based on feedback received from clients and stakeholders, it was felt that the time was right to review the dispute adjudication procedures, with a view to modernizing, streamlining and simplifying them.

For example, through feedback provided as part of the Agency’s client satisfaction surveys, clients and stakeholders have clearly indicated that they want more information about the Agency’s processes and they want these same processes to be faster, simpler, more predictable and transparent. The Rules have been designed to address these objectives.

The Agency has used its General Rules as procedures for both dispute adjudications and economic determinations. The Rules establish specific procedures designed for the adjudication of disputes. These Rules put in place significant improvements to benefit users of the Agency’s dispute resolution services. These improvements will make the Rules more understandable, efficient and predictable in their application.

Overall, clients and stakeholders will benefit from the Rules with no anticipated additional cost to industry or Government.

Implementation, enforcement and service standards

The Rules come into force on June 4, 2014, but, if they are published after that day, they come into force on the day on which they are published.

The General Rules will continue to apply to all proceedings before the Agency that were commenced before the coming into force of these Rules, except proceedings in respect of which the application filed before that time was not complete.

The Agency’s implementation plan has been tailored to both known clients and stakeholders as well as first-time users of the Agency’s dispute resolution services. Relying on various tools and means of communication, the strategy is aimed at promoting early awareness and understanding of the new procedures and time limits that will apply after the Rules come into force. This will ensure that the Rules are applied as efficiently and effectively as possible following their implementation.

There are no compliance and enforcement strategies that would be specifically applicable to the Rules.

The Agency has set in place an extensive array of time-based service standards to ensure that it provides efficient and transparent services. These standards are based on the Agency’s Performance Measurement Framework, first established in 2007, and are adjusted periodically according to client and stakeholder feedback as well as the Agency’s strategic objectives. Each year, the Agency publishes its performance results against these standards in its annual report.

The Agency will monitor the implementation of the Rules and how often dispute files meet the service standards established by the Agency.

Contact

Inge Green
Senior Counsel
Legal Services Branch
Canadian Transportation Agency
15 Eddy Street
Gatineau, Quebec
K1A 0N9
Telephone: 819-953-0611
Fax: 819-953-9269

• Footnote a
  S.C. 1996, c. 10
• Footnote 1
  SOR/2005-35