First Nations Tax Commission Review Procedures Regulations (SOR/2007-239)

Interpretation

Marginal note:Definitions

1 The following definitions apply in these Regulations.

Act

Act means the First Nations Fiscal Management Act. (Loi)

applicant

applicant means a person who requests a review under subsection 33(1) of the Act. (demandeur)

business day

business day means a day other than a Saturday or holiday. (jour ouvrable)

intervenor

intervenor means a person or organization added as an intervenor under section 14. (intervenant)

party

party means an applicant or a first nation that is the subject of a review. (partie)

review

review means

• (a) in sections 8 to 36, a review conducted under subsection 33(1) of the Act; and

• (b) in sections 37 to 42, a review conducted under subsection 33(2) of the Act. (examen)

Delegation to Panel

Marginal note:Delegation to panel

• 2 (1) On receipt of a request for review made under subsection 33(1) of the Act, or on initiating a review under subsection 33(2) of the Act, the Commission may delegate its power of review to a panel consisting of one or more commissioners.

• Marginal note:Designation of commissioners

  (2) The commissioners of that panel shall be designated by the Chief Commissioner.

• Marginal note:Commission includes panel

  (3) In these Regulations, a reference to the Commission includes a reference to a panel constituted under subsection (1).

Marginal note:Decision without hearing

3 The Commission may make a decision in any review without holding a hearing.

Delivery and Filing of Documents

Marginal note:Methods of delivery

• 4 (1) Delivery of a document may be made personally or by sending it by registered mail, fax or e-mail.

• Marginal note:Personal delivery

  (2) Personal delivery of a document is made

  • (a) in the case of an individual, by leaving the document with that individual or with a person at least 18 years of age residing at that individual’s place of residence;

  • (b) in the case of a first nation, by leaving the document with the individual apparently in charge, at the time of delivery, of the main administrative office of the first nation, or with the first nation’s legal counsel; and

  • (c) in the case of a corporation, by leaving the document with the individual apparently in charge, at the time of delivery, of its head office or one of its branch offices, or with an officer or director of the corporation or the corporation’s legal counsel.

• Marginal note:Time of delivery

  (3) Subject to subsection (4), a document shall be considered to have been delivered

  • (a) if delivered personally, on the day on which personal delivery is made;

  • (b) if sent by registered mail, on the fifth day after it is mailed;

  • (c) if sent by fax, on the day indicated on the confirmation of transmission; and

  • (d) if sent by e-mail, on the day indicated in the electronic confirmation that the e-mail has been opened.

• Marginal note:Date of delivery to Commission

  (4) Documents filed with the Commission are considered to have been delivered on the date stamped by the Commission under subsection 5(2) or (3).

Marginal note:Filing with Commission

• 5 (1) A document related to a review is filed with the Commission when it is delivered to its head office at the address indicated on the Commission’s website.

• Marginal note:Delivery stamp

  (2) Subject to subsection (3), each document filed with the Commission shall be stamped with the date on which it was delivered.

• Marginal note:Day of delivery

  (3) A document filed with the Commission on a day that is not a business day or after 17:00 local time on a business day shall be stamped as having been delivered on the next business day.

Marginal note:Delivery of copies

6 When a document is filed with the Commission, the Commission shall deliver a copy of it to all parties and intervenors.

Marginal note:Authorization

• 7 (1) Documents filed on behalf of a party shall be signed by a person authorized by the party and shall set out the nature of the person’s authorization.

• Marginal note:Proof of capacity

  (2) The Commission may at any time require a person who has signed a document on behalf of a party to provide proof of the person’s authority to act in that capacity.

Reviews Under Subsection 33(1) of the Act

Procedure

Marginal note:Filing a request for review

• 8 (1) A request for review shall set out

  • (a) the name, address and telephone number, and any available fax number and e-mail address, of the applicant and of any representative acting on behalf of the applicant;

  • (b) an address for the delivery of documents, if different from the address of the applicant or representative;

  • (c) the name of the first nation, and the title of any local revenue law, in respect of which the request for review is made;

  • (d) the grounds for the request for review;

  • (e) a concise statement of the facts and any law on which the applicant intends to rely;

  • (f) the remedy sought;

  • (g) any other information that the applicant believes the Commission requires in order to conduct the review; and

  • (h) if the review is requested on an expedited basis, the reasons for the urgency.

• Marginal note:Accompanying documentation

  (2) A request for review shall be accompanied by two copies of the applicant’s request for a remedy made to the council of the first nation pursuant to paragraph 33(1)(b) of the Act and any related correspondence with the council of the first nation.

Marginal note:Deficient request

9 If a request for review does not contain the information required under section 8, the Commission shall

• (a) identify what information is missing; and

• (b) advise the applicant that the information must be provided before the Commission will proceed with the request for review.

Marginal note:Reply

• 10 (1) A first nation that is the subject of the review may file a reply to the request for review within 10 business days after the day on which the Commission delivers to it a copy of the request for review.

• Marginal note:Content of reply

  (2) A reply to a request for review shall identify the request for review to which the reply relates and set out

  • (a) the name, address and telephone number, and any available fax number and e-mail address, of the first nation and of any representative acting on behalf of the first nation;

  • (b) an address for the delivery of documents, if different from the address of the first nation or its representative;

  • (c) an outline of the position the first nation takes in response to the request for review;

  • (d) an admission or denial of each allegation of fact contained in the request for review;

  • (e) a concise statement of any additional facts and any law on which the first nation intends to rely;

  • (f) any other information that the first nation believes the Commission requires in order to conduct the review; and

  • (g) if the review is requested on an expedited basis, the reasons for the urgency.

Marginal note:Failure to reply

11 If a first nation fails to submit a reply to a request for review, the Commission may conduct the review solely on the basis of the submissions of the applicant and any intervenors.

Marginal note:Filing of response

• 12 (1) The applicant may file a response to the first nation’s reply within five business days after the day on which the Commission delivered a copy of the reply to the applicant.

• Marginal note:Content of response

  (2) A response to the first nation’s reply shall identify the request for review to which the response relates and admit or deny any additional statements of fact contained in the reply.

Marginal note:Affected persons

13 Within 10 business days after the filing of a request for review that meets the requirements of section 8, the Commission shall

• (a) publish a notice of the review on an Internet site maintained by the Commission; and

• (b) deliver a copy of the request for review to the first nation that is the subject of the review and to the First Nations Financial Management Board.

Marginal note:Adding intervenor

• 14 (1) Any person or organization may apply to the Commission to be added as an intervenor

  • (a) if a hearing is to be held, at any time before the hearing begins; and

  • (b) in any other case, at any time before a decision on the review is rendered.

• Marginal note:Receipt of application

  (2) On receipt of an application under subsection (1), the Commission may

  • (a) add the person or organization as an intervenor;

  • (b) direct the person or organization to provide the Commission with additional information in support of the application; or

  • (c) reject the application.

• Marginal note:Adding Board as intervenor

  (3) If the First Nations Financial Management Board makes an application in accordance with subsection (1), the Commission shall add the Board as an intervenor for the purpose of making representations as to the impact of any requested remedy.

• Marginal note:Role of intervenors

  (4) An intervenor may make written submissions and, if a hearing is being held, oral argument to the Commission.

Marginal note:Delivery of documents

15 On adding a person or organization as an intervenor, the Commission shall deliver to the person or organization copies of the request for review, any reply filed under section 10 and any response filed under section 12.

Marginal note:Statutory declarations

• 16 (1) The Commission may require confirmation, by way of a statutory declaration, of any facts alleged in a request for review or reply that have not been admitted.

• Marginal note:Cross-examination on declaration

  (2) A party who has submitted a statutory declaration shall make the deponent of the declaration available for cross-examination on the content of the declaration by any other party.

Marginal note:Amendments to request for review

17 An applicant may file with the Commission a request that a review already under way address additional issues that would otherwise be the subject of a separate review.

Marginal note:Evidence and information

18 In conducting a review, the Commission may

• (a) accept evidence that is not given on oath or evidence that would not ordinarily be admissible in a court of law;

• (b) at the request of a party, require another party to provide the Commission with any documents necessary to the conduct of its review; and

• (c) direct that written submissions be filed.

Marginal note:Consolidation

19 The Commission may hold a single hearing in respect of more than one review or consolidate two or more reviews.

Marginal note:Required attendance

20 The Commission may require the parties to attend any conferences or meetings necessary to the conduct of a review.

Settlement

Marginal note:Settlement conferences

• 21 (1) A settlement conference may be scheduled by the Commission or at the request of a party at any stage in a review.

• Marginal note:Presence of party

  (2) If a representative is acting for a party, the Commission may direct that the party be present at the settlement conference or available to instruct the representative at that time.

Marginal note:Informal resolution

• 22 (1) The Commission may make settlement recommendations to the parties and may suspend the review to enable the parties to attempt to resolve the subject of the request for review informally.

• Marginal note:Referral to mediation

  (2) The Commission may recommend to the parties that the request for review be referred to formal mediation, in which case the Commission shall provide to the parties a roster of mediators who are independent of the Commission.

Marginal note:Consent order

23 If the parties reach an agreement, the Commission may make an order under paragraph 33(3)(a) of the Act embodying that agreement.

Marginal note:Recommencement of review

24 If six months have elapsed since a review was referred to mediation or adjourned for other settlement discussions without a settlement being reached, the Commission shall recommence the review and notify the parties accordingly.

Hearings

Marginal note:Directed hearing

• 25 (1) The Commission may at any time direct that a hearing be held in respect of a request for review.

• Marginal note:Notice of hearing

  (2) If the Commission directs that a hearing be held, the Commission shall fix the time, date and place for the hearing and deliver a notice of the hearing to all parties and intervenors.

Marginal note:Conduct of hearings

• 26 (1) The Commission may direct that a brief written summary of the submissions of any party or intervenor be filed in advance of a hearing.

• Marginal note:Expediting hearing

  (2) With the agreement of the parties, the Commission may

  • (a) proceed on the basis of an agreed statement of facts; or

  • (b) limit the number of witnesses to be called at a hearing.

• Marginal note:Teleconferencing

  (3) The Commission may hear oral evidence or oral submissions by teleconference.

• Marginal note:Adjournments

  (4) The Commission may adjourn a hearing for any time and on any terms that it considers appropriate.

Marginal note:Failure to attend

27 If a party or intervenor who has been given notice of a hearing in accordance with subsection 25(2) fails to attend, the Commission may proceed with the hearing and complete its review in the absence of that party or intervenor.

Marginal note:Subpoenas

• 28 (1) A party may, at any time before the conclusion of a hearing, request the Commission to apply to a justice of the peace for a subpoena compelling a person to appear before the Commission to give evidence and to bring any documents specified in the subpoena.

• Marginal note:Travel expenses

  (2) The Commission shall pay travel expenses, in the amount set out in Tariff A of the Federal Courts Rules, to every person compelled by subpoena to appear before it.

Marginal note:Pre-hearing conferences

• 29 (1) If a hearing is to be held, a pre-hearing conference between the parties shall be scheduled by the Commission to

  • (a) direct the pre-hearing production of documents by a party;

  • (b) determine whether a subpoena will be required in respect of any person who may be required as a witness;

  • (c) direct a party to provide further information regarding its position;

  • (d) develop an agreed statement of facts or obtain admissions that might facilitate the hearing;

  • (e) attempt to simplify the matters in dispute between the parties, including the resolution of some or all of them;

  • (f) determine the conduct of the hearing, including the order in which the parties will proceed, the number and identity of witnesses and the estimated time required; or

  • (g) decide any other matter that may aid in securing a just, expeditious or inexpensive disposition of the review.

• Marginal note:Require attendance

  (2) If a representative is acting for an applicant, the Commission may direct that the applicant be present at the pre-hearing conference.

• Marginal note:Single Commissioner

  (3) A pre-hearing conference may be conducted by a single Commissioner or an employee of the Commission.

Marginal note:Examination outside hearing

• 30 (1) At the request of a party, the Commission may consent to the examination of a person outside a hearing, having regard to

  • (a) the expected absence of the person at the time of the hearing;

  • (b) the age or any illness or infirmity of the person;

  • (c) the distance the person resides from the place where the hearing will be held; and

  • (d) the expense of having the person attend the hearing.

• Marginal note:Directions

  (2) In giving its consent under subsection (1), the Commission shall give directions regarding the time, place and manner of the examination, the notice to be given to the person being examined and to the other parties, the attendance of any other witnesses and the production of any requested documents or other material.

• Marginal note:Cross-examination

  (3) Other parties may cross-examine any person examined outside a hearing.

• Marginal note:Copies of transcript

  (4) A party submitting transcribed evidence shall provide a copy of the transcript, at its own expense, to the Commission and to all other parties.

Marginal note:Adverse witnesses

• 31 (1) Subject to subsection (4), a party may call another party as a witness at a hearing by requesting that a subpoena be delivered and travel expenses be paid to that party in accordance with subsections 28(1) and (2).

• Marginal note:Corporations

  (2) If the other party is a corporation, it shall provide as a witness an officer or director of the corporation who has knowledge of the facts in issue.

• Marginal note:First nation

  (3) If the other party is a first nation, it shall provide as a witness the person who administers the taxes of the first nation or another person who has knowledge of the facts in issue.

• Marginal note:Notice

  (4) A party shall give another party at least five business days notice of its intention to call that party or a person referred to in subsection (2) or (3) as a witness, unless the other party or that person is in attendance at the hearing.

Compliance and Costs

Marginal note:Non-compliance

32 If an applicant fails to comply with these Regulations, the Commission may dismiss the request for review.

Marginal note:Time periods variable

33 The Commission may, on the application of a party, extend or shorten any period provided for in these Regulations.

Marginal note:Variances

34 If it is necessary to secure the just, expeditious or inexpensive hearing of a request for review, or to accommodate the customs or culture of the first nation in respect of which a hearing is held, the Commission may vary any procedure provided for by these Regulations.

Marginal note:Costs

35 No costs shall be awarded in any review.

Decisions

Marginal note:Decisions of the Commission

• 36 (1) All decisions and orders of the Commission in a review shall be issued in written form and shall be accompanied by written reasons.

• Marginal note:Publication

  (2) A decision or order of the Commission, and the accompanying reasons, shall be published in the First Nations Gazette or on an Internet site maintained by the Commission.

• Marginal note:Provision of copies

  (3) The Commission shall provide a copy of each decision, order and accompanying reasons to all parties and intervenors and make copies of them available for inspection by the public at its offices.

• Marginal note:Compliance period

  (4) An order made under paragraph 33(3)(a) of the Act shall set out the period within which the first nation shall implement the required remedy.

Reviews Under Subsection 33(2) of the Act

Marginal note:Notice of review

• 37 (1) If the Commission decides to conduct a review under subsection 33(2) of the Act, it shall deliver a notice of review to the first nation that is the subject of the review.

• Marginal note:Content of notice

  (2) The notice of review shall

  • (a) if the Commission is of the opinion that the first nation has not complied with the Act or a regulation, identify the provision of the Act or regulation in question and the reason that the Commission believes it has not been complied with; and

  • (b) if the Commission is of the opinion that the first nation has unfairly or improperly applied a law, identify the law in question and the reason that the Commission believes it has been unfairly or improperly applied.

• Marginal note:Production of documents

  (3) The notice of review may require a first nation to produce any documents set out in the notice relating to the subject of the review.

• Marginal note:Publication of notice

  (4) Within 10 business days after the delivery of a notice of review, the Commission shall publish a notice of the proposed review on an Internet site maintained by the Commission and deliver a copy of the notice to the First Nations Financial Management Board.

Marginal note:Reply by first nation

• 38 (1) A first nation that receives a notice of review may file a reply within 10 business days after delivery of the notice.

• Marginal note:Content of reply

  (2) A reply to a notice of review shall identify the notice to which the reply relates and set out

  • (a) the name, address and telephone number, and any available fax number and e-mail address, of the first nation and of any representative acting on behalf of the first nation;

  • (b) an address for delivery of documents, if different from the address of the first nation or its representative;

  • (c) an outline of the position that the first nation takes in response to the allegations set out in the notice;

  • (d) an admission or denial of each allegation of fact contained in the notice;

  • (e) a concise statement of any additional facts and any law on which the first nation intends to rely; and

  • (f) any other information that the first nation believes the Commission requires in order to conduct the review.

• Marginal note:Failure to reply

  (3) If a first nation fails to file a reply, the Commission may proceed with the review.

Marginal note:Statutory declarations

• 39 (1) The Commission may require confirmation, by way of a statutory declaration, of any facts alleged in a reply that have not been admitted.

• Marginal note:Cross-examination on declaration

  (2) A party who has submitted a statutory declaration shall make the deponent of the declaration available for cross-examination by the Commission on the content of the declaration.

Marginal note:Evidence and information

40 In conducting a review, the Commission may

• (a) accept evidence that is not given on oath or evidence that would not ordinarily be admissible in a court of law;

• (b) at the request of a party, require another party to provide the Commission with any documents necessary to the conduct of its review; and

• (c) direct that written submissions be filed.

Marginal note:Adding intervenor

• 41 (1) Any person or organization may apply to the Commission to be added as an intervenor

  • (a) if a hearing is to be held, at any time before the hearing begins; and

  • (b) in any other case, at any time before the decision on the review is rendered.

• Marginal note:Receipt of application

  (2) On receipt of an application under subsection (1), the Commission may

  • (a) add the person or organization as an intervenor;

  • (b) direct the person or organization to provide the Commission with additional information in support of the application; or

  • (c) reject the application.

• Marginal note:Adding Board as intervenor

  (3) If the First Nations Financial Management Board makes an application in accordance with subsection (1), the Commission shall add the Board as an intervenor for the purpose of making representations as to the impact of any potential remedy.

Marginal note:Hearing

• 42 (1) The Commission may at any time direct that a review be set down for a hearing and, at the request of the first nation, shall hold a hearing.

• Marginal note:Procedures for hearing

  (2) Section 20, subsection 25(2) and sections 26, 27 and 33 to 36 apply, with any modifications that are necessary, to a hearing directed under subsection (1).

Coming into Force

Marginal note:Coming into force

43 These Regulations come into force on the day on which they are registered.