Rules of Procedure for Rail Level of Service Arbitration

SOR/2014-94

CANADA TRANSPORTATION ACT

Registration 2014-04-17

Rules of Procedure for Rail Level of Service Arbitration

The Canadian Transportation Agency, pursuant to subsection 169.36(1)Footnote a of the Canada Transportation ActFootnote b, makes the annexed Rules of Procedure for Rail Level of Service Arbitration.

GEOFFREY C. HARE
Chairperson
Canadian Transportation Agency
SAM BARONE
Vice-Chairperson
Canadian Transportation Agency

Interpretation, Definitions and Application

Marginal note:Purpose
  •  (1) The purpose of these Rules is to enable the parties to a dispute to achieve a resolution that is commercially fair and reasonable to the parties.

  • Marginal note:Just, expeditious, inexpensive

    (2) These Rules are to be interpreted and applied in a manner that facilitates, through arbitration, the just, expeditious and inexpensive resolution of the dispute.

Marginal note:Definitions

 The following definitions apply in these Rules.

Act

Loi

Act means the Canada Transportation Act. (Loi)

business day

jour ouvrable

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

day

jour

day means a calendar day. (jour)

document

document

document includes any information recorded or saved in any form. (document)

Marginal note:Application

 These Rules set out the procedure for an arbitration conducted under Division II of Part IV of the Act.

General Provisions

Marginal note:Dispensing and amending
  •  (1) The arbitrator may dispense with or amend any of these Rules if to do so will improve the efficiency and effectiveness of the arbitration procedure.

  • Marginal note:Time limits

    (2) The arbitrator may extend or abridge any time limit established under these Rules either before or after the time limit expires.

Marginal note:Confidentiality

 If any information relating to the arbitration is to be kept confidential, every person who will have access to the information in the course of the arbitration must sign a confidentiality agreement before they obtain access to the information.

Marginal note:Last day

 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.

Marginal note:Language of arbitration — agreement of parties
  •  (1) If the parties are in agreement on the official language in which the arbitration is to be conducted, they must advise the Agency accordingly by submitting a written notice along with each of their proposals.

  • Marginal note:Determined by arbitrator

    (2) If the parties fail to provide notice to the Agency, the language of the arbitration is to be determined by the arbitrator.

  • Marginal note:Translation services

    (3) A party that requires translation services in order to consult any document produced in either official language by the other party must make arrangements to obtain those services.

  • Marginal note:Simultaneous translation services

    (4) A party that requires simultaneous translation services in order to participate in the arbitration, or in order that one of their witnesses may present evidence in the language of the arbitration, must, at least seven days before the services are required, provide notice in writing of the requirement to the Agency.

Marginal note:Providing documents
  •  (1) Documents to be provided to a party under these Rules must be delivered or transmitted by email or facsimile.

  • Marginal note:Delivery — effective

    (2) Delivery of a document to a party is effective on the day on which the document is received at the address of the party or of their legal counsel or other authorized representative, if any.

  • Marginal note:Email or facsimile — effective

    (3) Email or facsimile transmission of a document is effective at the time that the email or facsimile is transmitted.

  • Marginal note:Irregular transmission

    (4) 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.

Marginal note:Oral communication with arbitrator
  •  (1) A party or their legal counsel or authorized representative must not speak with the arbitrator in the absence of the other party or the other party’s legal counsel or authorized representative.

  • Marginal note:Written communication

    (2) A party or their legal counsel or authorized representative must not write to the arbitrator without providing a copy of the communication to the other party at the same time.

Marginal note:Arbitrator’s mandatory disclosure

 Within 24 hours after the day on which a matter is referred for arbitration under subsection 169.35(1) of the Act, the arbitrator must provide a signed declaration to the parties that discloses any situation of which he or she is aware that could place him or her in a conflict of interest or that could give rise to a reasonable apprehension of bias in the context of the arbitration.

Marginal note:Lack of impartiality or conflict of interest
  •  (1) If a party is of the view that an arbitrator is unable to perform his or her duties impartially or is in a conflict of interest in the context of the arbitration, the party must advise the Agency by written notice without delay, setting out the reasons for their claim.

  • Marginal note:Decision within three days

    (2) The Chairperson must decide on the claim and notify the parties within three business days after the day on which written notice of the claim is received by the Agency.

Marginal note:Substitution
  •  (1) The Chairperson must appoint a substitute arbitrator as soon as feasible after

    • (a) the arbitrator becomes unable to continue to perform his or her duties;

    • (b) the arbitrator informs the Agency that he or she is no longer able to act as arbitrator or considers himself or herself unable to perform the duties of arbitrator without giving rise to a reasonable apprehension of bias or because of a conflict of interest; or

    • (c) the Chairperson decides, following written notice from a party, that the arbitrator cannot continue to perform his or her duties without giving rise to a reasonable apprehension of bias or because of a conflict of interest.

  • Marginal note:Hearings to be repeated

    (2) If an arbitrator is replaced, any hearings previously held must be repeated.

General Powers of Arbitrator

Marginal note:Role of arbitrator

 The arbitrator may, among other things,

  • (a) encourage and assist the parties in settling the dispute or any of the matters in dispute at all times until the end of the first pre-arbitration meeting;

  • (b) order the adjournment of the arbitration, if required;

  • (c) order the inspection of documents, goods or other property, including a site visit;

  • (d) give directions on questions of procedure that do not deal with the substance of the dispute, including those that arise in the course of pre-arbitration meetings;

  • (e) request further statements to clarify matters in dispute;

  • (f) in exceptional circumstances and if there is no prejudice to the parties, dispense with an oral hearing and order that all arguments and evidence be presented in writing; and

  • (g) as required, appoint one or more independent external experts to report on specific issues.

Steps Preceding Hearing

Marginal note:First pre-arbitration meeting
  •  (1) Within four days after the day on which the arbitrator is chosen in accordance with subsection 169.35(1) of the Act, he or she must convene a pre-arbitration meeting for the purpose, among other things, of

    • (a) encouraging settlement by the parties of the dispute, or of any matter in dispute;

    • (b) clarifying matters in dispute;

    • (c) determining whether there is consensus between the parties on any relevant facts, and if so, ordering the parties to produce an agreed statement of facts;

    • (d) determining the time required for the arbitration hearing, which should normally not exceed five days;

    • (e) fixing the date of the arbitration hearing;

    • (f) establishing a timetable for the completion of all pre-arbitration matters, including

      • (i) the exchange of arbitration briefs,

      • (ii) the exchange of questions referred to in subsection 169.36(3) of the Act, and

      • (iii) the holding of a second pre-arbitration meeting, if the arbitrator considers it appropriate;

    • (g) establishing the order of proceedings at the arbitration hearing; and

    • (h) deciding any other procedural matters in respect of the arbitration.

  • Marginal note:Type of meeting

    (2) The meeting may be conducted in person or by means of electronic communication, such as webcasting, video conferencing or teleconferencing.

  • Marginal note:Meeting summary

    (3) Within three days after the day on which the meeting takes place, the arbitrator must provide a summary of the meeting to the parties that outlines, among other things, any agreements reached and decisions rendered, the time, date and place, if applicable, of the second pre-arbitration meeting and the time, date and place of the arbitration hearing.

Marginal note:Exchange of arbitration briefs
  •  (1) Each party must provide their arbitration brief to the arbitrator and to the other party in accordance with the timetable established at the first pre-arbitration meeting.

  • Marginal note:Content

    (2) Each party’s arbitration brief must contain

    • (a) the material facts in support of the party’s position;

    • (b) the agreed statement of facts ordered by the arbitrator, if applicable;

    • (c) documentary evidence that the party intends to produce at the arbitration hearing in support of their position and that is selected from information exchanged under subsection 169.34(3) of the Act, including, in respect of any written opinion from an expert who is to give evidence at the hearing,

      • (i) the qualifications of the expert,

      • (ii) the expert’s opinion, and

      • (iii) the facts upon which the expert’s opinion is based;

    • (d) a description of the oral evidence to be presented at the arbitration hearing or signed witness statements; and

    • (e) the arguments in support of the party’s position, set out in concise numbered paragraphs, including references linking each argument to the relevant evidence referred to in paragraph (c) or (d).

  • Marginal note:Failure to deliver arbitration brief

    (3) A party that fails to deliver an arbitration brief in accordance with the established timetable is not entitled to participate further in the arbitration and the arbitration continues without that arbitration brief.

Marginal note:Optional second pre-arbitration meeting
  •  (1) If a second pre-arbitration meeting is to be held, the arbitrator must convene it for the purpose, among other things, of

    • (a) further clarifying matters in dispute;

    • (b) confirming the time required for the arbitration hearing;

    • (c) settling an agreed statement of facts, if applicable;

    • (d) determining which witnesses will attend the arbitration hearing and the dates and times of their attendance;

    • (e) confirming the order of proceedings at the arbitration hearing; and

    • (f) deciding any other procedural matters in respect of the arbitration.

  • Marginal note:Type of meeting

    (2) The meeting may be conducted in person or by means of electronic communication, such as webcasting, video conferencing or teleconferencing.

  • Marginal note:Meeting summary

    (3) Within three days after the day on which the meeting takes place, the arbitrator must provide a summary of the meeting to the parties that outlines, among other things, any agreements reached and any decisions rendered.

Arbitration Hearing

Marginal note:Place of arbitration hearing
  •  (1) Subject to subsections (2) and (3), the arbitration hearing is to be held at the head office of the Agency.

  • Marginal note:Electronic means

    (2) The arbitrator may, if circumstances justify it, conduct all or part of the hearing by means of electronic communication, such as webcasting, video conferencing or teleconferencing.

  • Marginal note:Change of location

    (3) On the request of a party, the arbitrator may conduct all or any part of the arbitration hearing at another location for the purpose of hearing witnesses, experts or the parties or of inspecting documents, goods or other property, if he or she determines that it would be more practical or that it is necessary to do so.

Marginal note:Transcript of arbitration hearing
  •  (1) No transcript of the arbitration hearing is to be taken, unless requested by the parties.

  • Marginal note:Copy to arbitrator

    (2) If a transcript is requested by the parties, they must provide a copy to the arbitrator as soon as it is available.

Marginal note:Final oral argument

 Subject to subsection 15(3) and section 23, each party must be permitted to present final oral arguments at the arbitration hearing.

Marginal note:Evidence

 Information that has not been exchanged under subsection 169.34(3) of the Act is not to be introduced as evidence.

Marginal note:Manner of examination
  •  (1) The manner in which witnesses are to be examined is to be determined by the arbitrator.

  • Marginal note:Exclusion of witness

    (2) On the request of a party, the arbitrator may require a witness to be absent from the arbitration hearing during the testimony of other witnesses.

  • Marginal note:Signed witness statement

    (3) If it was included in the party’s arbitration brief, a signed witness statement may replace the examination in chief of a party’s witness, in which case the witness is subject only to cross-examination and re-examination in respect of the statement.

  • Marginal note:Absence of party

    (4) All witness testimony is to be given in the presence of the arbitrator and, except if a party is voluntarily absent or has defaulted in the context of subsection 15(3), in the presence of both parties.

Marginal note:Alternative to witness attendance

 The arbitrator may, on the agreement of both parties, accept in evidence a signed witness statement or the affidavit of a witness in lieu of the attendance of the witness at the arbitration hearing.

Marginal note:Default of party

 The arbitrator will continue the arbitration hearing despite the absence of a party if the party, without sufficient cause and in the absence of notice to the arbitrator, fails to appear at the hearing.

Marginal note:Close of hearing

 The arbitrator may close the arbitration hearing if the parties, after inquiry by the arbitrator, confirm that they have no further evidence to present or submissions to make or if the arbitrator determines that, because he or she has sufficient understanding of the matters and of each party’s position, it is unnecessary to continue the hearing.

Marginal note:Record of arbitration hearing

 The record of the arbitration consists of the following documents:

  • (a) the written notice referred to in paragraph 169.33(1)(a) of the Act;

  • (b) the shipper’s submission for arbitration;

  • (c) each party’s proposal;

  • (d) each party’s arbitration brief;

  • (e) exhibits produced at the hearing; and

  • (f) any applicable order made by the Agency under section 169.43 of the Act.

Arbitrator’s Decision

Marginal note:Arbitration decision
  •  (1) The arbitrator’s decision must be made within seven days after the day on which the arbitration hearing ends.

  • Marginal note:Copy of decision to parties

    (2) The arbitrator must provide each party with a signed copy of the decision.

Marginal note:Minor corrections

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

  • (a) a clerical or typographical error;

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

  • (c) an error in calculation.

Coming into Force

Marginal note:Registration

 These Rules come into force on the day on which they are registered.

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