Procedures for the Adjudication of Objections to Rail Level of Service Arbitration Submissions under section 169.43 of the Canada Transportation Act

PART 1: BACKGROUND AND PURPOSE

1.1 Background

Subsection 169.31(1) of the Canada Transportation Act (CTA) identifies the matters that shippers may submit to the Canadian Transportation Agency (Agency) for arbitration.

Section 169.43 of the CTA allows a railway company to apply to the Agency for an order declaring that a shipper is not entitled to submit to the Agency for arbitration a matter contained in the shipper’s submission. For the purposes of these Procedures, applications under section 169.43 of the CTA will be referred to as “Objections”.

A railway company must file its Objection within 10 calendar days after the day on which it is served with a copy of a shipper’s submission for arbitration. 

The CTA imposes on the Agency a time limit of 35 calendar days, after the day on which an Objection is received, for making a decision on the Objection. While the timelines provided for in these procedures are short, they are necessary in order to permit a determination within this statutory time limit. 

Further information on Objections can be found in the documents entitled Eligibility of submissions for rail level of service arbitration and Principles related to rail level of service arbitration objections.

1.2 Purpose of these Procedures

The purpose of these Procedures is to set out the process for hearing Objections made under section 169.43 of the CTA.

The Procedures ensure that the Agency can consider the parties’ evidence and arguments and render a decision with due regard for fairness and efficiency.

Although the Procedures establish procedural steps that will apply generally to Objections under section 169.43 of the CTA, different or additional steps may be used to suit the needs of each proceeding, as ordered by the Agency and subject to the time limits imposed by the CTA.

Pursuant to section 6 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), the Agency dispenses with the application of those Rules to Objection proceedings, with the exception of sections 3 and 4 of those Rules.

PART 2: ALL OBJECTIONS

2.1 Contents of the railway company’s Objection

A railway company’s Objection must contain the following:

  • A statement of the grounds for the Objection;
  • Arguments and documentary evidence in support of the Objection.

The Agency will notify the parties in writing when the Objection has been accepted as complete.

2.2 Manner in which the Objection will be heard

Most Objections will proceed by way of written pleadings. Where this is the case, parties are not required to appear in person before the Agency, but instead submit their evidence and arguments in writing.

The Agency may decide to hear an Objection by way of oral hearing where the Agency determines that it is appropriate to do so for dealing with the objection before it. If the Agency decides to proceed by way of oral hearing, it will notify the parties in the notice indicating that the Objection has been accepted as complete.

The procedures and time limits applicable to written or oral submissions are set out in Parts 3 and 4 of these Procedures, respectively.

2.3 Adherence to time limits

The Agency expects that the parties will adhere to the time limits established in these Procedures. The Agency will not grant requests for extensions of time, postponements, adjournments or any similar requests where these would jeopardize the 35 calendar day time limit set out in the CTA for the Agency to make its decision on the objection.

2.4 Filing of documents and sending of copy to parties

A party that files a document with the Agency must, at the same time, send a copy of the document to the other party or, if the party is represented, to the party’s representative.

All documents must be filed with the Secretary of the Agency through the following co-ordinates:

By personal delivery:

Canadian Transportation Agency
15 Eddy Street
Gatineau, Quebec J8X 4B3

By e-mail: secretariat@otc-cta.gc.ca

By facsimile: 819-953-5253

Documents cannot be filed with the Agency by providing them directly to staff involved in the arbitration process. Documents may be filed with the Agency and sent to the other party by personal delivery, e-mail, facsimile or other electronic means specified by the Agency. Documents sent to the Agency through any other channels will not be accepted. Given the short legislative time limits for this process, delivery by ordinary mail is not possible and will not be accepted.

Parties that file affidavits by e-mail should file scanned affidavits showing handwritten signatures and retain the original affidavits.

Personal delivery shall be deemed to have been effected on the day of such delivery to the recipient’s address, or that of the recipient’s representative, where applicable.

E-mail or facsimile delivery shall be deemed to have been effected when transmitted. Any recipient may request a paper copy of any document sent by e-mail or facsimile to be delivered by personal delivery where the document cannot be received by the recipient by e-mail or facsimile.

2.5 Confidentiality

Pursuant to section 169.4 of the CTA, where a party requests that information be treated as confidential in an arbitration proceeding, it will also be treated as confidential in the Objection proceeding. Where a party has made a request that information be treated as confidential, the Agency’s decision will be confidential. However, the Agency may publish a summary of the general principles of a decision on its Web site.

At the request of a party or on its own initiative, the Agency may make any order it deems appropriate in respect of the confidentiality of information after giving the parties an opportunity to comment.

Requests that information be treated as confidential will be considered confidential.

Every person who will have access to confidential information must have undertaken in writing to maintain confidentiality of the information before obtaining access to it. 

Parties that file undertakings by e-mail should file scanned undertakings showing handwritten signatures and then file by mail the original undertakings.

2.6 Agency Decision

The Agency will issue its decision to the parties, in the language of the proceeding, within the statutory time limit imposed by the CTA.

On the same day that the decision is issued to the parties, the Agency will communicate the decision to the arbitrator.

2.7 Arbitration proceedings

Arbitration proceedings will continue notwithstanding an Objection, but an arbitration hearing should not be commenced or held before the Agency has made a decision on the Objection.

PART 3: PROCEEDINGS BY WAY OF WRITTEN SUBMISSIONS

3.1 Objection Record

3.1.1 Shipper’s answer

Within six calendar days after the date of the notice indicating that the Objection has been accepted as complete, the shipper may file an answer.

The shipper’s answer must contain a statement that sets out the elements that the shipper agrees with and disagrees with in the Objection, and a full description of the facts and arguments in support of the answer. The shipper must also include any relevant documentary evidence.

3.1.2 Railway company’s reply

Within two calendar days after the day on which it receives the shipper’s answer, the railway company may file a reply.  

The railway company’s reply must contain a statement that sets out the elements that the railway company agrees with and disagrees with in the answer and its arguments in support of the reply. The railway company must also include any relevant documentary evidence.

A reply must not raise issues or arguments that are not addressed in the answer or introduce new evidence except in exceptional circumstances and with the Agency's approval, which must be obtained in advance.

3.2 Written questions or requests for document production

3.2.1 Time limits for written questions or requests for document production

Within six calendar days after the date of the notice indicating that the Objection has been accepted as complete, the shipper may, at the same time than filing an answer, direct questions to the railway company and make a request for the production of documents. The railway company will then have two calendar days to respond to those questions and produce documents.

Within two calendar days after the day on which it receives the shipper’s answer, the railway company may, at the same time than filing a reply, direct questions to the shipper and make a request for the production of documents. The shipper will then have two calendar days to respond to those questions and produce documents.

3.2.2 Comments on answers to written questions or document production

The railway company and the shipper will have one calendar day following the shipper's response to questions and production of documents to comment on the responses to questions and the production of documents.

3.2.3 Objection to written questions or requests for document production

If a party objects to a written question or to producing a document, that party must file an objection within one calendar day after the day on which the party receives the request. The objection must include a clear and concise explanation of the reasons underlying the objection, including as applicable, the relevance of the information or document and its availability for production. The party must provide any document that is relevant in explaining or supporting the objection and any other information or document that is in the party's possession or control and that would be of assistance to the party who asked the question or asked for the production of documents.

The Agency may, on request of one of the parties or on its own initiative, make any order it deems appropriate in respect of written questions or requests for document production.

3.3 Verification by affidavit or witnessed statement

If the Agency considers it just and reasonable, the Agency may, on notice, require that a person provide verification of the contents of all or any part of a document by affidavit or by witnessed statement.

The Agency may strike the document or the part of the document in question from the Agency’s record if the person fails to file the verification.

PART 4: PROCEEDINGS BY WAY OF ORAL HEARING

4.1 Parties' availability for the hearing

Within four calendar days after the date of the notice indicating that the Objection has been accepted as complete and will proceed by way of oral hearing, the railway company must indicate all possible dates for which it is available between the 20th and 25th calendar days after the day on which the Objection is filed with the Agency.

Within four calendar days after the day on which the shipper receives the railway company's evidence or the notice indicating that the railway company does not intend to file affidavit evidence, the shipper must indicate all possible dates for which it is available between the 20th and 25th calendar days after the day on which the Objection is filed with the Agency.

After considering the positions expressed by the parties, it is the Agency, and not the parties, that will ultimately determine when cases will be heard.

4.2 Objection Record

Parties should not file written submissions containing arguments, except as ordered by the Agency. Instead, parties are expected to present their arguments orally at the hearing.

4.2.1 Railway company’s affidavit evidence in support of the Objection

Within four calendar days after the date of the notice indicating that the Objection has been accepted as complete and will proceed by way of oral hearing, the railway company must file evidence in the form of affidavits with supporting documents attached as exhibits to the affidavits filed.

If the railway company does not intend to file affidavit evidence, it must notify the Agency and the shipper within the time limit prescribed above.

4.2.2 Shipper’s evidence in answer

Within four calendar days after the day on which the shipper receives the railway company's evidence or the notice indicating that the railway company does not intend to file affidavit evidence, the shipper must file evidence in answer, consisting of evidence in the form of affidavits with supporting documents attached as exhibits to the affidavits filed.

After the evidence in answer is filed, no further evidence may be filed by the shipper except in exceptional circumstances and with the Agency's approval, which must be obtained in advance.

If the shipper does not intend to file affidavit evidence, it must notify the Agency and the railway company within the time limit prescribed above.

4.2.3 Railway company’s evidence in reply

Within two calendar days after the day on which a railway company receives a shipper’s evidence in answer, the railway company may file evidence in reply, consisting of affidavits with supporting documents attached as exhibits to the affidavits filed. 

A reply must not raise issues that are not addressed in the answer or introduce new evidence except in exceptional circumstances and with the Agency's approval, which must be obtained in advance.

After the evidence in reply is filed, no further evidence may be filed by the railway company except in exceptional circumstances and with the Agency's approval, which must be obtained in advance.

4.3 Pre-Hearing Conference

On or around the 13th calendar day after the day on which an Objection is received, the Panel assigned to determine the Objection will hold a pre-hearing conference with the parties, which may be conducted by means of electronic communication, to:

  • Determine the date, duration and location of the hearing;
  • Determine the language(s) to be used during the hearing, including whether arrangements for simultaneous interpretation will be required by a party for the hearing;
  • Clarify the issues;
  • Determine whether any party intends to cross-examine witnesses and if so, whether this will take place prior to the hearing outside the Agency’s presence or at the hearing before the Panel;
  • Determine any procedures applicable to cross-examination and re-examination to be held prior to the hearing, if applicable;
  • Determine the scope of and time allotted for cross-examination and re-examination at the hearing, if applicable;
  • Determine whether any special arrangements will be required by a party for the hearing; and
  • Deal with any other matters necessary for the conduct of the proceedings, including whether the hearing will be conducted on a confidential basis.

The Panel will issue a written procedural direction containing a summary of all agreements made and rulings on matters dealt with at the pre-hearing conference.

4.4 Cross-examination and re-examination on affidavits

4.4.1 Manner in which the cross-examination and re-examination on affidavits will be held

No witness will be heard at a hearing unless a request has been made to the Agency.  In the absence of such request, the cross-examination and re-examination on affidavits will be held prior to the hearing and outside the Agency’s presence.

Where a request has been made to the Agency for a witness to be heard at a hearing, the Agency may order that cross-examination and re-examination on affidavits be held prior to the hearing and outside the Agency’s presence where the Agency determines that it is appropriate to do so.

4.4.2 Cross-examination and re-examination on affidavits prior to the hearing

Where cross-examinations and re-examinations on affidavits are held prior to the hearing and outside the Agency’s presence, parties must refer any objections to cross-examination questions to the Agency as quickly as possible in writing or by any other means specified by the Agency.

Where a party objects to a question asked during cross-examination or re-examination on affidavit, the party must briefly state the grounds for the objection for the record. A person may answer a question under reserve of the objection.

A party who intends to rely on the transcripts of a cross-examination or re-examination on affidavit, as well as any material produced in connection therewith, must file a notice of intent, along with the relevant excerpts of the transcripts and any other material, with the Agency three calendar days before the scheduled hearing day.

4.4.3 Cross-examinations and re-examinations on affidavits at the hearing

Where cross-examinations and re-examinations on affidavits will be held at the hearing, witnesses will be cross-examined and re-examined under oath or solemn affirmation.

4.4.4 Subpoenas

A subpoena requiring the attendance of a person as a witness may be obtained without charge from the Agency.

The subpoena shall be signed by the Secretary and sealed with the Agency’s seal and, if it is issued in blank, it shall be completed by a party to the proceeding or the party’s representative.

A subpoena shall be served personally on the person to whom it is directed and a copy of the subpoena and the affidavit of service shall be filed with the Agency at least 48 hours before the date fixed for the attendance of the person as a witness.

A party who serves a subpoena shall, at the time of service, pay or tender to the person served an amount to which the person would have been entitled as fees and allowances if the subpoena had been issued under the Federal Courts Rules, SOR/98-106.

Issuing a subpoena does not oblige the Agency to hear the witness. For example, the Agency may refuse to hear a witness if it determines that the witness's testimony will be irrelevant or repetitive. Furthermore, a person who receives a subpoena may file with the Agency a request to cancel the subpoena. To decide whether to grant the request, the Agency will take into account all the circumstances of the case.

4.5 Oral Hearing

4.5.1 Place of hearing

The hearing will be held at a location to be determined by the Agency.

Where the Agency determines that it is appropriate to do so, the Agency may conduct all or part of the hearing by means of electronic communication.

4.5.2 Order of proceeding

Unless otherwise ordered by the Agency, the order of proceeding at the hearing will be as follows:

  • Opening of the hearing
  • Opening remarks by Panel
  • Parties’ identification for the record
  • Railway company’s cross-examinations on affidavits, if cross-examination takes place at the hearing
  • Shipper’s re-examinations, if cross-examination takes place at the hearing
  • Questions from Panel/Agency counsel, if cross-examination takes place at the hearing
  • Shipper’s cross-examinations on affidavits, if cross-examination takes place at the hearing
  • Railway company’s re-examinations, if cross-examination takes place at the hearing
  • Questions from Panel/Agency counsel, if cross-examination takes place at the hearing
  • Railway company’s final argument
  • Shipper’s final argument
  • Railway company’s reply argument
  • Questions from Panel/Agency counsel
  • Closing remarks by Panel

4.5.3 Oral requests

The parties are expected to raise with the Panel any procedural requests, as soon as they arise, and in any event, before the commencement of the hearing.

Requests that are raised at the hearing, but could have been brought forward earlier will not be considered by the Agency. If a matter arises at the hearing or could not have been raised earlier, a request may be made at the hearing, with the Agency's approval.

The Agency may make any order it deems appropriate in respect of requests made at the hearing.

4.5.4 Final arguments

During the hearing, each party will be given an opportunity to make their final arguments to the Agency.

4.5.5 Time allowed for making final arguments

The Agency expects that each party’s final arguments will not exceed 90 minutes in length. Where the Agency determines that it is appropriate to do so, this time may be lengthened or shortened by the Agency.

4.5.6 Filing of authorities

A party that wishes to refer to case law in its arguments must file a book of authorities prior to the hearing.

Three copies of the book of authorities should be filed with the Agency. An additional copy should be provided to the other party.

4.5.7 Default of a party

The Objection hearing continues despite the absence of a party if the party, without sufficient cause and in absence of notice to the Agency, fails to appear at the hearing.

4.5.8 Written Arguments

The Agency may, whenever it considers it appropriate to do so, order written arguments to be submitted by a party in addition to oral arguments.

TIME LIMITS

Please note that all time limits are expressed in calendar days and all submissions must be filed by 05:00 p.m. local Gatineau time.

Time limits applicable to Objections proceeding by way of written submissions
Received Railway Company’s Objection Received

Day 1

35-calendar day statutory time limit begins to run

Day 2

Agency notifies parties that Objection is accepted as complete and will proceed by way of written submissions

   

Day 8

Time limit for filing shipper’s answer, as well as any written questions or request for production of documents directed to the railway company

Day 10

Day 12

Time limit for filing railway company’s reply, responses to shipper's questions and  documents, as well as any written questions or request for production of documents directed to the shipper

Time limit for filing shipper’s response to questions and documents

Day 13

Time limit for comments on responses to questions or produced documents

Day 35

Issuance of decision to parties

Time limits applicable to Objections proceeding by way of oral hearing
Received Railway Company’s Objection Received

Day 1

35-calendar day statutory time limit begins to run

Day 2

Agency notifies parties that Objection is accepted as complete and will proceed by way of oral hearing

Day 6

Time limit for railway company to file affidavit evidence and indicate dates of availability for oral hearing

Day 10

Time limit for shipper to file affidavit evidence in answer and indicate dates of availability for oral hearing

Day 12

Time limit for filing railway company’s evidence in reply

Day 13

3 days before hearing

Pre-hearing conference

Time limit to file notice of intent to file transcripts of cross- or re-examination and transcripts and materials, if conducted prior to hearing

Day 20 -25

Oral hearing

Day 35

Issuance of decision to parties

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