National Energy Board Rules of Practice and Procedure, 1995 (SOR/95-208)

• 16 (1) Where any information referred to in section 15 is not filed with the application, the applicant shall attach to the application a statement

  • (a) where the information is already in the Board’s possession, identifying the information and the circumstances under which it came into the possession of the Board;

  • (b) where the information is unavailable to the applicant at the time of filing, identifying the date on which the applicant intends to file the required information; or

  • (c) where the applicant objects to the filing of the information, setting out the objection and the grounds therefor.

• (2) Where the Board determines that the grounds for the objection referred to in paragraph (1)(c) are not sufficient, the Board shall so inform the applicant and the applicant shall file the information.

Production of Documents

17 Unless leave of the Board is granted, where, at any time in a proceeding, a person intends to rely on a document other than a decision or order of or document released by the Board, the person shall

• (a) file the document with the Board and serve a copy of it on all parties; or

• (b) where the document is already in the Board’s possession, file a statement identifying the document and the circumstances under which it came into the possession of the Board.

Additional Information

18 At any time in a proceeding, the Board may require a party to provide such further information, particulars or documents as may be necessary to enable the Board to obtain a full and satisfactory understanding of the subject-matter of the proceeding.

Complaints

19 A complaint shall be served by the complainant on any person whose conduct is the subject of the complaint and that person may, within 20 days after receipt of the complaint, file a written answer with the Board and shall serve a copy of any answer on the complainant.

Failure to Comply

• 20 (1) Where an applicant fails to provide the information described in sections 15 and 16 or does not respond to a request for information from the Board or any other party, the Board may stay the application until the information is provided, whether or not the application has been set down for a hearing.

• (2) Where a party does not comply with these Rules or any directions issued by the Board, the Board may stay the proceeding until the Board is satisfied that the Rules or directions have been complied with or may take such other steps as are just and reasonable in order to conduct a fair proceeding.

• (3) Where for any reason an application or proceeding has been stayed for five years pursuant to subsection (1) or (2) respectively, the application that has been stayed or the application giving rise to the proceeding that has been stayed shall be considered to have been withdrawn and shall be returned to the applicant.

PART IIPublic Hearings

General

21 Subject to section 48, this Part applies to the conduct of public hearings before the Board that are required by the Act or held pursuant to subsection 15(3) or 24(3) of the Act, whether the evidence in respect of the hearing is in written or oral form.

• 22 (1) The Board may determine that a proceeding be disposed of by an oral or a written public hearing and may invite submissions from interested persons in order to make that determination.

• (2) Notwithstanding subsection (1), where necessary at any time in a proceeding, the Board may order that the proceeding be disposed of by an oral public hearing in substitution for a written public hearing.

Hearing Order

• 23 (1) The Board

  • (a) shall issue a hearing order, containing the procedural details applicable to the hearing, accompanied by a notice of public hearing, where an application is to be disposed of by means of an oral public hearing; and

  • (b) may, if necessary, issue a hearing order, containing the procedural details applicable to the hearing, which may be accompanied by a notice of public hearing, where an application is to be disposed of by means of a written public hearing or where a proceeding is commenced by the Board under subsection 15(3) of the Act.

• (2) Where the Board issues a notice of public hearing in accordance with subsection (1), other than where the notice is issued pursuant to section 35 of the Act, the applicant shall, within such time limit as the Board may direct,

  • (a) publish the notice in such publications as the Board may direct; and

  • (b) serve a copy of the notice on such persons as the Board may direct.

• (3) An applicant referred to in subsection (2) shall file with the Board an affidavit that sets out the title and date of each publication in which the notice of public hearing was published pursuant to paragraph (2)(a) and the means taken to effect service pursuant to paragraph (2)(b).

• (4) Where the Board does not issue a hearing order, it shall notify interested persons of the hearing and the procedure to be followed in respect thereof.

Public Inspection

24 Where the Board issues a hearing order,

• (a) the applicant shall keep available at the applicant’s business address, for public inspection during regular business hours, a copy of the application and the record as described in subsections 36(7) and 37(5); and

• (b) the Board shall keep available for public inspection in the Board’s library

  • (i) a copy of the application and all documents related thereto, or

  • (ii) in the case of the Board acting on its own motion under subsection 15(3) of the Act, all documents related to the proceeding.

Formulation of Issues

• 25 (1) The Board may formulate issues to be considered in a proceeding and shall notify parties in respect thereof if, in the opinion of the Board,

  • (a) the documents filed with the Board do not sufficiently raise the matters in issue in the proceeding;

  • (b) the formulation of issues would assist the Board in the conduct of the proceeding; or

  • (c) the formulation of issues would assist the parties in participating more effectively in the proceeding.

• (2) To assist the Board in formulating issues in accordance with subsection (1), the Board may invite parties to propose issues or to suggest amendments to any formulated issues.

• (3) Any party who proposes an issue pursuant to subsection (2) shall explain the issue’s relevance and the justification for considering it in the proceeding.

Written Submissions or Conference

26 The Board may direct parties to make written submissions for the purpose of considering matters that relate to

• (a) the clarification or simplification of issues;

• (b) the necessity or desirability of amending an application, notice of motion, answer, intervention or reply for the purpose of clarification, amplification or limitation;

• (c) the admission of certain facts or the verification of those facts by affidavit, or the use by any party of documents of a public nature;

• (d) the settling of matters that relate to information requests;

• (e) the procedure to be adopted in the proceeding;

• (f) the exchange of documents among the parties; and

• (g) any other matter that could aid in the conduct and disposition of the proceeding.

27 The Board may convene the parties to a conference

• (a) to formulate issues as described in section 25; or

• (b) to consider the matters described in section 26.

Interventions

• 28 (1) Where a hearing order has been issued pursuant to section 23, any interested person may intervene in the proceeding by filing with the Board and serving on the applicant, if any, on or before the date set out in the order, a written intervention that

  • (a) in the case of an oral hearing, states whether the person intends to appear at the hearing and the official language in which the person wishes to be heard;

  • (b) sets out the name of the person and any authorized representative of the person and the mailing address, address for personal service, telephone number and any other telecommunications numbers of the person or the person’s authorized representative;

  • (c) establishes that the person’s interest justifies intervenor status in the proceeding; and

  • (d) subject to subsection (2), states the issues that the person intends to address at the hearing or, where the person does not intend to participate actively at the hearing, states the reasons why the person’s interest justifies intervenor status in the proceeding.

• (2) Where, by reason of an inability or insufficient time to study an application, a person is unable to include in the written intervention the information required by paragraph (1)(d), the person shall

  • (a) provide a statement in the written intervention explaining why the person was unable or why there was insufficient time to study the application; and

  • (b) within 15 days after the date of service of a copy of the application or within 15 days after the date of filing of the written intervention, whichever is the later, file with the Board and serve on the applicant, if any, a supplement to the written intervention containing the information required by paragraph (1)(d).

• (3) The Board may accept or disallow an intervention depending on whether the requirements set out in subsection (1) have been met and in either case the Board shall notify the applicant, if any, and the person who filed the intervention of its decision in respect of the intervention.

• (4) An intervenor, on being advised by the Board of the name and mailing address of any other intervenor, shall serve a copy of the written intervention and any supplement thereto on every other intervenor.

• (5) A party may, within 15 days after the date of service of a written intervention or within 15 days after the date of service of any supplement thereto that is submitted in accordance with subsection (2), whichever is the later, serve an objection to the intervention on the person who has filed the intervention and shall file with the Board and serve on all other parties a copy of the objection.

Objections Under Part VI of Act

• 29 (1) Notwithstanding section 28 and subject to subsection (2), a purchaser of gas in Canada who objects to the issuance of a licence for the exportation of gas on the grounds that the purchaser has not had an opportunity to obtain gas under contract on terms and conditions, including price, similar to those of the proposed export, may file a written objection with the Board and shall thereby acquire intervenor status.

• (2) A purchaser of gas in Canada who files an objection under subsection (1) shall serve a copy of the objection on the applicant for the licence on the same day.

Letters of Comment

• 30 (1) Where a hearing order has been issued pursuant to section 23, any interested person who does not wish to intervene in the proceeding but who wishes to make comments to the Board regarding the proceeding shall file with the Board and serve on the applicant, if any, on or before the date set out in the order, a letter of comment that

  • (a) comments on the application or the subject-matter of the proceeding;

  • (b) describes the nature of the person’s interest in the proceeding; and

  • (c) provides any relevant information that the person considers will explain or support the person’s comments.

• (2) The Board shall provide all parties with a copy of any letter filed pursuant to subsection (1).

• (3) A party may, within 15 days after receipt of a letter filed pursuant to subsection (1), serve a reply on the person who has filed the letter and shall file with the Board and serve on all other parties a copy of the reply.

• (4) A person who files a letter pursuant to subsection (1)

  • (a) does not thereby acquire status as an intervenor;

  • (b) loses intervenor status if that person is an intervenor; and

  • (c) subject to subsection (3), is not entitled to any further notice in the proceeding.

Service on Intervenors

31 Unless the Board otherwise directs, an applicant who is notified that an intervention has been accepted by the Board in accordance with subsection 28(3) shall, within such time limit as the Board may fix, serve on the intervenor

• (a) a copy of the application;

• (b) any information, particulars or documents relevant to the application that have been filed with the Board;

• (c) at the request of the intervenor, a copy of any information that, pursuant to paragraph 16(1)(a), was not filed with the application; and

• (d) any hearing order issued by the Board, in the official language as appropriate or as requested.

Information Requests

• 32 (1) A party may direct an information request, within such time limit as the Board may fix,

  • (a) to any other party who has filed written evidence, in relation to any matter that is raised in that other party’s written evidence; and

  • (b) with leave of the Board or consent of the party to whom the information request is directed,

    • (i) to any other party who has filed written evidence, in relation to any matter that is in issue in the proceeding but that is not raised in that other party’s written evidence, and

    • (ii) to any other party who has not filed written evidence.

• (2) A party seeking leave under paragraph (1)(b) shall, within any time limit fixed by the Board pursuant to subsection (1), file with the Board and serve on the party to whom the information request is directed, the proposed information request and the justification therefor.

• (3) The Board shall not grant leave pursuant to paragraph (1)(b) unless the party to whom the information request is directed has been given an opportunity to comment on the proposed information request.

• (4) Where the Board has fixed a time limit pursuant to subsection (1), a party shall not, after the time limit expires, direct an information request to another party unless the Board grants leave to direct the request or the other party consents thereto.