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

• 33 (1) An information request shall be in writing, addressed to the applicable party and numbered consecutively in respect of each information request, including prior information requests.

• (2) Within any time limit fixed by the Board pursuant to section 32, every information request made pursuant to that section shall be served on the party to whom it is directed and a copy of the request shall be filed with the Board and served on all other parties.

• 34 (1) Subject to subsection (2), a party served with an information request pursuant to subsection 33(2) shall, within any time limit fixed by the Board,

  • (a) provide a full and adequate response in writing to each information request, on separate pages for each question where practicable; and

  • (b) file with the Board and serve on all other parties a copy of the response provided.

• (2) A party who does not provide a response as required by paragraph (1)(a) shall, within any time limit fixed by the Board pursuant to subsection (1), file with the Board and serve on all other parties a statement

  • (a) where the party objects to the filing of the information requested, setting out the objection and the grounds therefor; or

  • (b) where the party contends that the information necessary to provide a response is not available, setting out the reasons for the unavailability of the information, accompanied by any alternative available information that the party considers would be of assistance to the party directing the information request.

• (3) Where the Board determines that the grounds for the objection referred to in paragraph (2)(a) are not sufficient, the Board shall so inform the party and the party shall comply with subsection (1).

Notice of Motion

• 35 (1) Any matter that arises in the course of a proceeding and that requires a decision or order of the Board shall be brought before the Board by notice of motion.

• (2) A notice of motion shall

  • (a) be in writing;

  • (b) be signed by the person making the motion or the person’s authorized representative;

  • (c) be divided into consecutively numbered paragraphs, each of which shall be confined as nearly as is practicable to a distinct portion of the subject-matter of the motion; and

  • (d) contain a concise statement of the facts, the decision or order sought and the grounds therefor.

• (3) A person making a motion shall file the notice of motion with the Board and serve a copy on all parties.

• (4) A party who wishes to answer a notice of motion shall, within 10 days after receipt of the notice of motion, file a written answer with the Board and serve a copy on the person making the motion and on all other parties.

• (5) A person making a motion may, within five days after being served with an answer thereto, file a written reply with the Board and serve a copy on all parties.

• (6) Notwithstanding subsections (2) to (5), a notice of motion may, during an oral hearing, be given orally and, where it is so given, it shall be disposed of in accordance with such procedure as the Board directs.

• (7) Notwithstanding anything in Part III, an application to review a decision or order of a procedural nature made in the course of a proceeding, other than a decision to adjourn the proceeding for a period in excess of 60 days or for an unspecified period, may be made by a notice of motion.

Evidence at an Oral Hearing

• 36 (1) A party who intends to present evidence at an oral hearing shall, within such time limit as the Board may fix, file with the Board and serve on all other parties written evidence containing

  • (a) the position of the party on the issues in the hearing; and

  • (b) particulars regarding the name, title, position and other credentials of each witness who will address evidence on behalf of the party and the issues that the witness will address at the hearing.

• (2) Each witness referred to in paragraph (1)(b) shall confirm orally at the hearing or, with leave of the Board, by affidavit, that the written evidence or part thereof that the witness will address at the hearing was prepared by the witness or under the direction and control of the witness and is accurate to the best of the knowledge and belief of the witness.

• (3) For greater certainty, all written evidence referred to in subsection (1) must be confirmed pursuant to subsection (2).

• (4) Written evidence shall be

  • (a) in question and answer form, each line of which shall be consecutively numbered; or

  • (b) in narrative form, each paragraph of which shall be consecutively numbered.

• (5) A party may be cross-examined on any response filed by the party in respect of an information request and on any information filed by the party in the course of the proceeding.

• (6) Subject to subsection (7), witnesses at an oral hearing shall be examined orally on oath or solemn affirmation.

• (7) The Board may, at any time in a proceeding, order that

  • (a) evidence of certain facts shall be given by affidavit;

  • (b) the affidavit of any witness shall be read at an oral hearing on such conditions as are necessary for the fair conduct of the hearing; and

  • (c) any witness shall be examined before a commissioner of oaths or other person who is authorized to administer oaths and who is appointed by the Board for that purpose.

• (8) The following information is considered to constitute the record of the applicant:

  • (a) the information contained in the application;

  • (b) the information identified by a statement referred to in paragraph 16(1)(a);

  • (c) any response by the applicant to an information request;

  • (d) any additional information provided by the applicant as required under section 18; and

  • (e) any written evidence filed by the applicant pursuant to subsection (1).

• (9) The applicant shall not, except with leave of the Board, file any information in addition to that listed in subsection (8).

Evidence at a Written Hearing

• 37 (1) In the case of a written hearing, the Board may dispose of the application on the basis of the documentation before it or may require additional information pursuant to section 18.

• (2) The additional information provided by the applicant shall be filed with the Board and served on all other parties.

• (3) Where the Board provides parties the opportunity of filing written evidence, the written evidence shall contain the issues that the parties wish the Board to address and shall be provided

  • (a) in question and answer form, each line of which shall be consecutively numbered; or

  • (b) in narrative form, each paragraph of which shall be consecutively numbered.

• (4) All written evidence filed with the Board shall be supported by an affidavit of the person who prepared the evidence or under whose direction or control it was prepared attesting that the evidence is accurate to the best of that person’s knowledge and belief.

• (5) The following information is considered to constitute the record of the applicant:

  • (a) the information contained in the application;

  • (b) the information identified by a statement referred to in paragraph 16(1)(a);

  • (c) any response by the applicant to an information request;

  • (d) any additional information provided by the applicant as required under section 18; and

  • (e) any written evidence filed by the applicant pursuant to subsection (3).

• (6) The applicant shall not, except with leave of the Board, file any information in addition to that listed in subsection (5).

Communication with Witnesses

38 Except during examination or cross-examination, there shall be no communication between any counsel and a witness under examination or cross-examination from the time that the witness has been sworn or affirmed until that witness has been excused, unless it is necessary to comply with undertakings, deal with procedural matters, prepare for cross-examination of parties adverse in interest, prepare the witness for appearance on a subsequent panel, or for other reasons with leave of the Board or with consent of Board counsel and all parties present at the hearing or their authorized representatives.

Opening Statements

39 Unless leave of the Board is granted, any opening statement that a witness intends to make shall, at least one clear business day before the attendance of the witness, be filed with the Board by a party on behalf of its witness and served on all other parties.

Subpoenas

• 40 (1) At the request of a party, the Board may issue a subpoena, which shall be signed by the Secretary and sealed by the Secretary with the Board’s seal.

• (2) A subpoena issued pursuant to subsection (1) shall be issued in the form set out in the schedule and may set out the names of any number of persons required to appear before the Board.

• (3) No person served with a subpoena is required to appear before the Board pursuant to the subpoena unless the person has been paid or tendered conduct money in an amount sufficient to cover the person’s reasonable fees and travelling expenses.

• (4) A subpoena shall be served personally on the person to whom it is directed at least two clear business days before the date on which the person is to appear.

Simultaneous Interpretation

41 Where both official languages are intended to be used at an oral hearing, the Board shall make simultaneous interpretation available to the parties at the hearing.

Argument

42 The Board may order parties to submit written argument in addition to or in lieu of oral argument.

PART IIIApplications for Review or Rehearing

General

43 In this Part,

application for review

application for review includes an application to vary or rescind any decision or order of the Board; (demande de révision)

original proceeding

original proceeding means

• (a) in respect of an application for a review pursuant to subsection 21(1) of the Act, the proceeding that gave rise to the decision or order in respect of which the review is sought,

• (b) in respect of an application for a rehearing pursuant to subsection 21(1) of the Act, the proceeding in respect of which the rehearing is sought, or

• (c) in respect of an application for leave to appeal to the Federal Court of Appeal pursuant to subsection 22(1) of the Act, the proceeding that gave rise to the decision or order in respect of which leave to appeal is sought. (procédure initiale)

Applications

• 44 (1) Any application for review or rehearing pursuant to subsection 21(1) of the Act shall be in writing, signed by the applicant or the applicant’s authorized representative, filed with the Board and served on all parties to the original proceeding.

• (2) An application for review or rehearing shall contain

  • (a) a concise statement of the facts;

  • (b) the grounds that the applicant considers sufficient, in the case of an application for review, to raise a doubt as to the correctness of the decision or order or, in the case of an application for rehearing, to establish the requirement for a rehearing, including

    • (i) any error of law or of jurisdiction,

    • (ii) changed circumstances or new facts that have arisen since the close of the original proceeding, or

    • (iii) facts that were not placed in evidence in the original proceeding and that were then not discoverable by reasonable diligence;

  • (c) the nature of the prejudice or damage that has resulted or will result from the decision or order; and

  • (d) the nature of the relief sought.

• (3) For the purposes of subsection (2), unless otherwise determined by the Board, an original proceeding is considered to be closed

  • (a) in the case of an oral hearing, at the end of the final argument; and

  • (b) in the case of a written hearing, on the close of business for the Board on the later of

    • (i) the last date for filing of written evidence, and

    • (ii) the last date for filing argument.

Disposition

• 45 (1) Upon receipt of an application for review or rehearing, the Board may, subject to subsection (2),

  • (a) dismiss the application if the Board is of the view that the applicant has not

    • (i) in the case of an application for review, raised a doubt as to the correctness of the Board’s decision or order, or

    • (ii) in the case of an application for rehearing, established that a rehearing is required; or

  • (b) issue an order granting a review or rehearing and issue such other order as the Board considers to be just and reasonable.

• (2) Before making a determination under subsection (1) the Board may

  • (a) issue directions on procedure giving interested persons the opportunity to make submissions and indicating the manner of making the submissions

    • (i) in the case of an application for review, on whether or not a doubt has been raised as to the correctness of the Board’s decision or order or, in the case of an application for rehearing, on whether or not a rehearing is required,

    • (ii) on the merits of confirming, amending or overturning the Board’s decision or order or rehearing the application, and

    • (iii) on the merits of granting the decision or order sought; or

  • (b) determine that a review or rehearing is required and issue directions on procedure giving interested persons the opportunity to make submissions and indicating the manner of making the submissions

    • (i) in the case of an application for review, on the merits of confirming, amending or overturning the Board’s decision or order or, in the case of an application for rehearing, on the merits of rehearing the original proceeding, and

    • (ii) on the merits of granting the decision or order sought.