Rules of Procedure for Boards of Review (SOR/2003-28)

Interpretation

1 The following definitions apply in these Rules.

Act

Act means the Canadian Environmental Protection Act, 1999. (Loi)

applicant

applicant means a person who has filed a notice of objection under the Act. (demandeur)

Board

Board means a board of review established under section 333 of the Act. (commission)

interested person

interested person means a government, association or person having an interest in the outcome of an inquiry for a purpose that is neither frivolous nor vexatious. (personne intéressée)

Minister

Minister means the Minister or Ministers who establishes a Board under section 333 of the Act. (ministre)

party

party means

• (a) the applicant; and

• (b) an interested person who has filed an application for leave to intervene under section 10, and to whom the Board grants the opportunity to appear under section 335 of the Act. (partie)

Non-Application

2 These rules do not apply in an inquiry to the extent that they are inconsistent with any particular rules that may be made with respect to that inquiry by the Minister under section 341 of the Act.

Powers of Board to Vary Rules

• 3 (1) At any time during an inquiry, if it is just, fair and in the public interest to do so, the Board may vary or dispense with these Rules.

• (2) If the Board varies or dispenses with these Rules, the Board must inform the Minister and the parties without delay and issue directions concerning the procedures to be followed at the inquiry.

Quorum

4 A majority of the members of a Board constitutes a quorum and the absence of a member of the Board does not impair the right of the quorum to act.

Calculation of Time

5 Any period of time set out in these Rules or set by the Board in the course of an inquiry, shall be calculated as a number of consecutive calendar days.

Conference

6 The Board may direct the Minister and the parties to attend a conference for the purpose of

• (a) clarifying and simplifying issues;

• (b) admitting facts or verifying facts by affidavit;

• (c) discussing the use of documents of a public nature;

• (d) discussing the procedure to be followed at the inquiry;

• (e) exchanging written submissions, exhibits and other material;

• (f) identifying submissions, documents or testimony that contains or may contain confidential information;

• (g) identifying who may be given access to any confidential information;

• (h) determining the number of witnesses, or the time for presenting evidence, rebutting evidence or cross-examining;

• (i) discussing the use of electronic communication, including teleconferences and videoconferences, for the hearing; or

• (j) dealing with any other relevant matter.

Notice of Hearing

• 7 (1) The Board shall give written notice of a hearing to the Minister and the parties at least 30 days before the commencement of the hearing.

• (2) The notice shall include the subject matter, time and place of the hearing and information on how to present evidence or make representations.

• (3) The notice shall state whether all or part of the hearing will be conducted orally or in writing.

Written Submission

• 8 (1) The Board may require the Minister or a party to file a written submission with the Board containing

  • (a) a summary of the facts and other evidence that they intend to present; and

  • (b) the names of any witnesses that they intend to call during the hearing and a summary of the evidence to be presented by each of those witnesses.

• (2) The Minister or the party shall file the written submission with the Board at least seven days before the hearing.

Expert Witnesses

• 9 (1) A party who intends to introduce the evidence of an expert witness shall, at least 20 days before the hearing begins, serve a report on the Minister and the other parties and file the report with the Board.

• (2) A party on whom a report described in subsection (1) has been served and who wishes to use the evidence of an expert witness to rebut a matter set out in the report shall, at least 10 days before the hearing begins, serve a report of the expert on the Minister and the other parties and file the report with the Board.

• (3) A report referred to in subsection (1) or (2) shall include the qualifications of the expert and a full statement of the evidence to be presented.

• (4) If the Minister intends to introduce the evidence of an expert witness, the Minister shall serve on the parties and file with the Board the report referred to in subsection (1) or (2) , as applicable, within the number of days set out in that subsection.

Intervenors

• 10 (1) An interested person who intends to intervene in an inquiry shall file with the Board and serve on the Minister and every party a written application for leave to intervene that

  • (a) states whether the person intends to appear at the hearing;

  • (b) establishes that the person's interest justifies intervenor status; and

  • (c) states the issues that the person intends to address at the inquiry.

• (2) The Board, in determining whether to grant intervenor status and the opportunity to appear before it in accordance with section 335 of the Act, shall provide the parties and the Minister the opportunity to make representations on whether the person should be granted intervenor status and take into consideration any other relevant matter, including

  • (a) the nature of the inquiry;

  • (b) the issues;

  • (c) whether the person has a genuine interest in the issues;

  • (d) the likelihood of the person being able to make a useful and different contribution to the Board's understanding of the issues; and

  • (e) any delay or prejudice that may be caused.

• (3) The Board must notify the Minister and the parties of its decision with respect to an application for leave to intervene.

• (4) The Board may direct the Minister or a party to provide to an intervenor information or evidence that they provided to the Board prior to the filing of the application for leave to intervene.

Representation

• 11 (1) The Minister, a party or a witness may be represented at a hearing by counsel.

• (2) The Board, on motion, may authorize an agent to represent a party or a witness if the agent is competent to properly represent or advise the party or witness.

Evidence

• 12 (1) The Board may accept evidence or representations in person, in writing or in electronic form, including by teleconference or videoconference.

• (2) The Board may require a party that has filed evidence with the Board to serve copies of that evidence on the other parties or the Minister.

• (3) The Board may require the Minister to serve copies of evidence that the Minister has filed with the Board on the parties.

Public Nature of Inquiry

13 Except if information or evidence is treated as confidential for any reason referred to in paragraphs 52(a), (b) or (c) of the Act or contains personal information, as defined in section 3 of the Privacy Act, hearings conducted by the Board shall be public and information provided to the Board for the purpose of an inquiry shall be placed on the public record.

Service of Documents

• 14 (1) Any document that is required by these Rules to be served or filed may be served or filed by hand, mail or any other means in which the recipient is capable of receiving it, including electronic format.

• (2) A person who serves a document electronically shall, within seven days after the date of service, provide a paper copy of the document to the recipient, unless the recipient waives that right in writing.

• (3) The date of service of a document is the date that it is received by the person being served or their authorized representative.

Costs

• 15 (1) If awarding costs under section 338 of the Act, the Board shall consider whether any conduct or step taken during the proceedings was improper, vexatious or in bad faith.

• (2) For greater certainty, failure to comply with these Rules or a direction of the Board constitutes improper conduct.

• (3) Before awarding costs, the Board shall consider the seriousness of the misconduct.

16 The Board may direct that costs be paid to the Minister or a party or that costs be paid by a party or the Minister.

17 If the Board awards costs, it shall consider the following criteria in fixing the costs:

• (a) the amount of additional work required as a result of the conduct or steps taken during the proceedings that were improper, vexatious or in bad faith;

• (b) the costs incurred for the preparation of written submissions required or permitted by the Board and for the presence at the hearing of counsel that are necessary as a result of the conduct or steps taken during the proceedings that were improper, vexatious or in bad faith, with the exception of the costs of travel, accommodation and meals;

• (c) the reasonableness of the amounts claimed in the bill of costs; and

• (d) if the Board directs costs to be paid at the request of a person, any conduct of or steps taken by that person during the proceedings that were improper, vexatious or in bad faith.

• 18 (1) After the hearing, the Minister or a party may make a written application for costs. The application shall be accompanied by a bill of costs and supporting receipts and set out

  • (a) the name of the person from whom costs are claimed;

  • (b) the reasons for the application; and

  • (c) the conduct or steps taken during the proceedings by the person from whom costs are claimed that were improper, vexatious or in bad faith.

• (2) Within 10 days after the last day of the hearing, the application, accompanied by the bill of costs and receipts, shall be served on the person from whom costs are claimed and filed with the Board.

• (3) Within 10 days after service of the application, accompanied by the bill of costs and receipts, the person from whom costs are claimed and who wishes to contest the application, bill of costs or receipts shall serve a response on the person who filed the application and file the response with the Board.