Competition Tribunal Rules (SOR/2008-141)

Marginal note:Response

• 69 (1) Each respondent shall, at least 30 days before the commencement of the hearing, serve in response on every other party and on all intervenors

  • (a) a list of documents on which the respondent intends to rely at the hearing, noting any waivers of privilege claimed in regard to those documents; and

  • (b) witness statements setting out the lay witnesses’ evidence in chief in full.

• Marginal note:Content of witness statements

  (2) Unless the parties otherwise agree, the witness statements shall include only fact evidence that could be given orally by the witness together with admissible documents as attachments or references to those documents.

Marginal note:Reply

70 The applicant may, at least 15 days before the commencement of the hearing, serve in reply on every other party and on all intervenors

• (a) any additional reply documents on which the applicant intends to rely at the hearing as a result of the respondent’s disclosure, and any waiver of privilege; and

• (b) any new reply witness statements or additions to existing witness statements to deal with any issues raised in the reply.

Evidence at the Hearing

Marginal note:Sanctions

71 If a document has not been disclosed in the affidavit of documents and in the pre-hearing disclosure, or if privilege has not been waived for such a document, it shall not be received in evidence at the hearing unless the Tribunal orders otherwise.

Marginal note:Records to be admitted in evidence

72 The Commissioner shall provide a list of the documents to be admitted in evidence without further proof in accordance with section 69 of the Act at least 45 days before the commencement of the hearing.

Marginal note:Information under par. 11(1)(a) of the Act

73 The Commissioner may move for authorization from the Tribunal to read into evidence information obtained under paragraph 11(1)(a) of the Act.

Marginal note:Evidence in chief

• 74 (1) The evidence in chief of each lay witness shall be tendered by way of the statement referred to in rules 68 to 70 and consist of their full statement of evidence and relevant documents or references to those documents.

• Marginal note:Witness statements

  (2) Witness statements of lay witnesses shall be provided to the registry with proof of service at least 10 days before the commencement of the hearing.

• Marginal note:Tribunal may read

  (3) The Tribunal may read the material provided, unless a party makes a valid objection.

• Marginal note:Witness must attend

  (4) A witness statement may be received in evidence at the hearing only if the witness is in attendance and available for cross-examination or questioning by the Tribunal.

• Marginal note:Evidence in chief

  (5) The lay witness may be examined in chief for the purpose of summarizing or highlighting the evidence contained in the statement.

Witness Panels

Marginal note:Witness panels

75 The Tribunal may require that some or all of the witnesses testify as a panel at any time that the Tribunal may determine.

Marginal note:Manner of testimony

• 76 (1) The Tribunal shall direct the manner in which the panel shall testify.

• Marginal note:Cross-examination and re-examination

  (2) Counsel may cross-examine or re-examine witnesses.

Expert Evidence

Marginal note:Expert report

• 77 (1) At least 60 days before the commencement of the hearing, an applicant who intends to introduce evidence of an expert witness at the hearing shall serve the report of the expert witness on each other party and any intervenors.

• Marginal note:Responding report

  (2) At least 30 days before the commencement of the hearing, a respondent may serve a responding expert report on each other party and any intervenors.

• Marginal note:Reply report

  (3) The applicant may, at least 15 days before the commencement of the hearing, serve an expert reply report on each other party and any intervenors.

• Marginal note:Content of report

  (4) A report referred to in any of subrules (1) to (3) shall include a full statement of the evidence of the expert witness, the expert’s qualifications as an expert and a list of the sources and documents relied upon in the report.

Marginal note:Expert report provided to the registry

• 78 (1) Unless otherwise ordered during case management, a report referred to in rule 77 shall be provided to the registry with proof of service at least 10 days before the commencement of the hearing.

• Marginal note:Tribunal may read

  (2) The Tribunal may read the report provided, unless a party makes a valid objection.

• Marginal note:Record

  (3) The report shall not form part of the record until it is received in evidence at the hearing.

Marginal note:Examination of expert witness

79 A report referred to in rule 77 shall not be read aloud at the hearing but the expert witness may be examined in chief for the purpose of summarizing or highlighting the evidence contained in the report and may be cross-examined and re-examined.

Marginal note:Tribunal-appointed expert

• 80 (1) The Tribunal may, at any time, by order appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in a proceeding.

• Marginal note:Agreed upon expert

  (2) The parties may jointly recommend an expert to the Tribunal.

• Marginal note:Submissions

  (3) The parties may make submissions about the terms of the order.

• Marginal note:Content of order

  (4) The order shall contain the following information:

  • (a) the name of the expert being appointed and the expert’s qualifications;

  • (b) the instructions given to the expert with respect to the preparation of the report;

  • (c) the questions to be posed to the expert;

  • (d) the date on which the report of the expert is to be provided to the Tribunal;

  • (e) the nature and extent of the expert’s participation in the proceeding; and

  • (f) the remuneration to be paid to the expert.

• Marginal note:Service of report

  (5) The Registrar shall serve a copy of the report on every party and any intervenor.

• Marginal note:Case record

  (6) The report shall be made part of the case record.

• Marginal note:Response

  (7) Any party may file a written response to the expert’s report and may examine the expert. The order and nature of such examinations shall be determined by the Tribunal.

• Marginal note:Further or supplementary report

  (8)  The Tribunal may order the expert to make a further or supplementary report, and subrules (4) to (7) apply to that report.

• Marginal note:Liability for payment

  (9) The liability for payment of the remuneration of the expert shall be determined by the Tribunal at any time after the conclusion of the hearing following receipt of submissions on that issue.

PART 3Motions

Informal Procedure

Marginal note:Informal procedure

• 81 (1) Except in the case of a motion for summary disposition, if these Rules provide that relief shall be sought by way of motion, a party may begin by informally requesting relief by sending a letter to the registry and serving the letter on the other parties and on any intervenor, who shall respond promptly.

• Marginal note:Tribunal direction

  (2) The Tribunal may issue a direction resolving a matter for which relief is requested under subrule (1) or direct the party to proceed by way of motion.

Formal Procedure

Marginal note:Application

82 Rules 83 to 88 apply to all motions except for a motion for leave to intervene referred to in rule 42 or a motion for summary disposition referred to in rule 89.

Marginal note:Notice of motion

• 83 (1) A motion shall be commenced by notice of motion, setting out the grounds for the motion and the order sought.

• Marginal note:Content

  (2) A notice of motion shall be accompanied by any supporting affidavits and other admissible evidence.

• Marginal note:Service

  (3) The moving party shall serve the notice of motion on each other party and any intervenors and file the notice of motion with proof of service.

Marginal note:Disposition without hearing

• 84 (1) A moving party may request in writing that the Tribunal dispose of the motion without a hearing.

• Marginal note:Disposition with a hearing

  (2) If a hearing is to be held, the notice of motion shall indicate that the motion is returnable at a date and time and in a manner directed by the Tribunal.

Marginal note:Service of response

• 85 (1) A party or intervenor served with a notice of motion may, no later than seven days after being served, serve on the moving party and on each other party and intervenor a response stating the grounds on which the motion is opposed and any supporting affidavits.

• Marginal note:Filing

  (2) The response and supporting affidavits, if any, shall be filed with proof of service within the period set out in subrule (1).

Marginal note:Decision without a hearing

86 The responding party may request in writing that the Tribunal dispose of the motion without a hearing.

Marginal note:Evidence and memorandum

87 The moving party and the responding party shall, no later than 10 days after the service of the response, serve on each other party and on any intervenors and file with proof of service

• (a) any supplementary evidence to be relied on by the party, including transcripts; and

• (b) a memorandum of fact and law.

Marginal note:Testimony by affidavit

• 88 (1) Subject to subrule (2), testimony on a motion shall be by affidavit.

• Marginal note:Oral testimony

  (2) The judicial member designated to preside at the hearing of a motion may, before or during the hearing, grant leave for oral testimony in relation to an issue raised in the notice of motion.

Motion for Summary Disposition

Marginal note:Notice of motion

• 89 (1) A motion for summary disposition under subsection 9(4) of the Competition Tribunal Act shall be commenced by a notice of motion, which shall set out the grounds for the motion and the order sought.

• Marginal note:Timing

  (2) A party to an application may bring a motion for summary disposition under subsection 9(4) of the Competition Tribunal Act after the respondent has filed a response to the application and at a time that enables the moving party to meet the deadline for the hearing of motions prescribed during a case management conference.

• Marginal note:Content

  (3) The notice of motion shall be accompanied by

  • (a) a memorandum of fact and law; and

  • (b) any supporting affidavits and other admissible evidence.

• Marginal note:Service

  (4) The moving party shall serve the notice of motion and the accompanying documents referred to in subrule (3) on each other party and any intervenors and shall file those documents with proof of service.

Marginal note:Response

• 90 (1) A party served with a motion for summary disposition may, no later than 10 days after being served, serve a response on the moving party and on each other party and any intervenors.

• Marginal note:Content

  (2) The response shall be accompanied by

  • (a) a memorandum of fact and law; and

  • (b) any supporting affidavits and other admissible evidence.

• Marginal note:Filing

  (3) The response and accompanying documents referred to in subrule (2) shall be filed with proof of service within the period set out in subrule (1).

• Marginal note:Genuine basis for application

  (4) A response to a motion for summary disposition shall not rest merely on allegations or denials of the pleadings of the moving party, but must set out specific facts showing that there is a genuine basis for the application or the response to the application.

Marginal note:Testimony

91 Unless otherwise ordered, there shall be no oral testimony on a motion for summary disposition.

Marginal note:Power of the Tribunal

92 The Tribunal may dismiss or allow the application in whole or in part in accordance with subsection 9(5) of the Competition Tribunal Act.

Marginal note:Motion — refused or granted in part

93 If a motion for summary disposition is refused or is granted only in part, the Tribunal may make an order specifying any issues that are not in dispute and defining the issues to be determined.

Marginal note:Motion refused

94 If a motion for summary disposition is refused, the moving party may not make a further motion under rule 89 without leave of the Tribunal.

PART 4Interim or Temporary Orders

Application

Marginal note:Application of Part

95 This Part applies to applications for

• (a) temporary orders made under subsection 74.11(1) of the Act in deceptive marketing practices cases before the Commissioner completes an inquiry and extensions to those temporary orders under subsection 74.11(5) of the Act;

• (b) interim orders made under subsection 100(1) of the Act in merger cases before the Commissioner completes an inquiry and extensions to those interim orders under subsection 100(7) of the Act;

• (c) interim orders made under subsection 103.3(1) of the Act in reviewable practices cases before the Commissioner completes an inquiry and extensions to those interim orders under subsections 103.3(5) and (5.3) of the Act or variations to them under subsection 103.3(7) of the Act; and

• (d) interim orders made under subsection 104(1) of the Act in merger and reviewable practices cases after an application has been made to the Tribunal.