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Competition Tribunal Rules (SOR/2008-141)

Regulations are current to 2020-10-05

PART 2Contested Proceedings (continued)

Access to Documents (continued)

Marginal note:Content of motion

 The party or intervenor making a motion referred to in rule 66 shall

  • (a) include in the grounds for the motion details of the specific, direct harm that would allegedly result from unrestricted disclosure of the document or information; and

  • (b) include in the motion a draft confidentiality order including the following elements, namely,

    • (i) a description of the document or information or the category of documents or information for which the person seeks the confidentiality order,

    • (ii) the identification of the person or category of persons who are entitled to have access to the confidential document or information,

    • (iii) any document or information or category of documents or information to be made available to the person or category of persons referred to in subparagraph (ii),

    • (iv) any written confidentiality agreement to be signed by the person or persons referred to in subparagraph (ii) and the provisions of that agreement,

    • (v) the number of copies of any confidential document to be provided to the person or persons referred to in subparagraph (ii) and any limitation on subsequent reproduction of that document by that person or those persons, and

    • (vi) the disposal of the confidential document following the final disposition of the proceeding.

Pre-hearing Disclosure

Marginal note:List of documents and witness statements

  •  (1) The applicant shall, at least 60 days before the commencement of the hearing, serve on every other party and on all intervenors

    • (a) a list of documents on which the applicant 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:Response

  •  (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

 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

 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

 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

 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

  •  (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

 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

  •  (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

  •  (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

  •  (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

 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

  •  (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.

 
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