Proposed Canadian Transportation Agency Rules of Procedure for Long-Haul Interswitching Adjudication

Note

Note: The Proposed Guidance Material and Proposed Rules of Procedures for Long-haul Interswitching were developed for consultation as part of the Canadian Transportation Agency’s Regulatory Modernization Initiative, and is not final.

This web page will continue to be updated as needed, and will be finalized when the consultation process is completed.

Interpretation

Definitions

1 The following definitions apply in these Rules.

Act means the Canada Transportation Act. (Loi)

applicant means a person that files an application with the Agency.(demandeur)

application means a document that is filed before the Agency to request a long-haul interswitching order against a respondent pursuant to subsection 129(1) of the Act. (demande)

business day means a day that the Agency is ordinarily open for business. (jour ouvrable)

day means a calendar day. (jour)

document includes any information that is recorded in any form. (document)

objection means a request for an order from the Agency declaring that an applicant is not eligible to file an application to the Agency or not entitled to submit a matter contained in the application pursuant to Division IV of Part III of the Act. (opposition)

party means an applicant, or a respondent. (partie)

proceeding means any matter that is commenced by application to the Agency. (instance)

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. (défendeur)

Application

Proceedings

2 These Rules apply to any proceeding.

Proceedings

Interpretation and Dispensing with Compliance

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.

Interpretation of Rules

5 (1) These Rules are to be interpreted in a manner that facilitates the most expeditious determination of every 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 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.

Last day

7 The last day for doing an act or meeting any other requirement under these Rules applies even if that day is not a business day.

Filing of Documents and Sending of Copy to Parties

Filing

8 (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 party filing the document files, at the same time, a request for confidentiality under section 23 in respect of the document.

Copy to parties

9 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 23; or,

(b) an application.

Means of transmission

10 Documents must be filed with the Agency and copies must be sent to the other parties by email or facsimile.

Facsimile — cover page

11 A party 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

12 (1) A document that is sent by email or facsimile 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. A document that is sent after 5:00 p.m. Gatineau local time is considered to be filed with the Agency and received by the other parties on the next day.

Irregular transmission

(2) If a document that is transmitted by email or facsimile is not received or is only partially received, the sender must, as soon as feasible after receiving a request from the recipient, deliver a paper copy of the document to the recipient.

Filing after time limit

13 (1) A party must not file a document after the end of the applicable time limit for filing the document.

Filing not provided for in Rules

(2) A person must not file a document whose filing is not provided for in these Rules.

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

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

Translation

(2) If a party 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 proceeding.

Representation and Change of Contact Information

Representative not a member of the bar

15 A party that is represented in a 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 2.

Change of contact information

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

Pleadings

Application

Filing of application

17 (1) Any application filed with the Agency must include the information referred to in Schedule 3.

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

18 A respondent may file an answer to the application. The answer must be filed within five days after the date of the notice indicating that the application has been accepted and must include the information referred to in Schedule 4.

Filing of objection

19 (1) A respondent, in its answer, may file an objection. Any objection must include the information referred to in Schedule 6.

(2) The Agency may

(a) deny the objection, in whole or in part; or,

(b) grant the objection, in whole or in part.

Reply

Reply

20 (1) An applicant may file a reply to the answer. The reply must be filed within three days after the day on which they receive a copy of the answer and must include the information referred to in Schedule 5.

(2) The reply must not raise issues or arguments that are not addressed in the answer or introduce new evidence.

Answer to objection

21 An applicant may file an answer, in its reply, to the respondent's objection. The answer must include the information referred to in Schedule 7.

Comments following a decision

Decision

22 (1) The Agency may

(a) make a decision on any matter raised in the application; and,

(b) make its decision on the remaining matters following additional pleadings.

Comments

(2) When required by the Agency, the parties may file comments on a decision referred to in paragraph (1)(a).

(3) The respondent's comments must be filed within five days after the date of issuance of the decision and must include the information referred to in Schedule 8.

(4) The applicant's comments must be filed within three days after the day on which they receive a copy of the comments referred to in subsection 22(3) and must include the information referred to in Schedule 9.

Requests

Request for Confidentiality

Confidential treatment

23 (1) A party 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 11 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 three days after the day on which they receive a copy of the request for confidentiality and must include the information referred to in Schedule 12.

Response to request for disclosure

(4) The party that filed the request for confidentiality may file a response to a request for disclosure. The response must be filed within two days after the day on which they receive a copy of the request for disclosure and must include the information referred to in Schedule 13.

Agency’s decision

(5) The Agency may

(a) if the Agency determines that the document is not relevant to the proceeding, decide to not place the document on the Agency’s record;

(b) if the Agency determines that the document is relevant to the 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 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 party requesting confidentiality provide a copy of the document or part of the document in confidence to any party to the proceeding, or to certain of their advisors, experts and representatives, as specified by the Agency, after the party 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 Withdraw Application

Withdrawal of application

24 (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 10.

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

Conference

25 (1) The Agency may require the parties to attend a conference by a means of telecommunication or by personal attendance for the purpose of

(a) encouraging settlement;

(b) formulating, clarifying or simplifying the issues;

(c) determining the terms of amendment of any document;

(d) obtaining the admission of certain facts;

(e) establishing the procedure to be followed in the 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; and,

(h) resolving any other issues to provide for a more efficient and effective process.

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

(3) Minutes may be 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.

Minor Corrections

Minor Corrections

26 Within two business days after the day on which they receive the Agency’s decision, a party may apply to the Agency to correct

(a) a clerical or typographical error;

(b) an accidental error, slip, omission or other similar mistake; or,

(c) an error in calculation.

SCHEDULES

SCHEDULE 1 (Subsection 14(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 email address or the facsimile number to which it is being sent.

SCHEDULE 2 (Section 15) 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 for a party 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’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 party.

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

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

SCHEDULE 3 (Subsection 17(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, including how the applicant:

(i) meets the criteria referred to in subsection 129(1) of the Act;

(ii) does not fall within one of the situations referred to in section 133 or in subsections 129(3), 134(2) of the Act.

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

SCHEDULE 4 (Section 18) 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 and 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 email address or the facsimile number to which it is being sent.

SCHEDULE 5 (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 and 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 email address or the facsimile number to which it is being sent.

SCHEDULE 6 (Subsection 19(1)) Objection

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 objection 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 objection that include

(a) a summary of the facts; and,

(b) the arguments in support of the objection including how the applicant:

(i) does not meet the criteria referred to in subsection 129(1) of the Act;

(ii) falls within one of the situations referred to in section 133 or in subsections 129(3) and 134(2) of the Act.

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

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

SCHEDULE 7 (Section 21) Response to Objection

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 objection to which the person is responding, including the name of the person that filed the objection.

4 The details of the response that include

(a) a statement that sets out the elements that the person agrees with and disagrees with in the objection; 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 email address or the facsimile number to which it is being sent.

SCHEDULE 8 (Subsection 22(2)) Respondent's Comments following a Decision

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 comments.

3 The details of the comments that include

(a) a statement that sets out the elements that the respondent agrees with and disagrees with in the decision;

(b) a full description of the facts; and,

(c) the arguments in support of the comments.

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

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

SCHEDULE 9 (Subsection 22(4)) Applicant's Comments following a Decision

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 comments.

3 The details of the comments that include

(a) a statement that sets out the elements that the applicant agrees with and disagrees with in the decision;

(b) a statement that sets out the elements that the applicant agrees with and disagrees with in the respondent's comments;

(c) the arguments in support of the comments; and,

(d) a full description of the facts.

4 A list of any documents submitted in support of the comments 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 email address or the facsimile number to which it is being sent.

SCHEDULE 10 (Subsection 24(1)) Request to withdraw an application

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 email address or the facsimile number to which it is being sent.

SCHEDULE 11 (Subsection 23(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 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 email address or the facsimile number to which it is being sent.

SCHEDULE 12 (Subsection 23(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 email address or the facsimile number to which it is being sent.

SCHEDULE 13 (Subsection 23(4)) Response to 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 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 and 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 email address or the facsimile number to which it is being sent.

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