PART 4Conduct of Proceedings (continued)
Case Management (continued)
Marginal note:Case management order
31 After a case management conference, the case manager may make an order relating to any issue considered at the case management conference.
Marginal note:Request for variation of order
32 (1) A party may submit a request to the case manager to vary a case management order made under rule 31. The request must be filed with the Board and served on each other party.
Marginal note:Content of request
(2) The request to vary must indicate the reason why the request is being made and must include a statement indicating whether the other parties have consented to the variation.
Marginal note:Variation of the order
(3) The case manager may vary the order if there are compelling reasons to do so.
Marginal note:Joint request
33 (1) If a collective society and one or more objectors jointly submit a set of royalty rates and related terms and conditions to the Board and jointly request that the Board approve a proposed tariff based on those royalty rates and terms and conditions, they must
(a) file a submission in support of their request;
(b) file all agreements concluded between the parties that relate to the same uses or substantially the same uses as those covered by the proposed tariff;
(c) identify each proposed tariff, or a portion of the proposed tariff, that is to be approved on the basis of the request; and
(d) provide any other information required by the Board.
(2) On receiving the request, the Board or the case manager may, if it or they consider it appropriate to do so, establish any procedural steps in the matter or make modifications to any schedule of proceeding.
34 The Board or the case manager may make an order to permit interrogatories and to specify their number, type, scope and form, the time limits for their completion and the person to whom they may be addressed.
Marginal note:Authorization of filing
35 (1) The Board or the case manager may authorize or require a person to file a case record, a response to a case record or a reply to a response.
(2) If a party files a case record, a response to a case record, or a reply to a response with the Board, they must serve it on each other party.
Marginal note:Contents of case record or response
(3) The case record or response to a case record must contain
(a) a statement of case setting out the party’s position and how they intend to support it;
(b) the documentary exhibits on which the party intends to rely, including any expert reports and sworn statements or solemn declarations of lay witnesses, if applicable;
(c) a list of the documentary exhibits, if applicable;
(d) a list of witnesses the party intends to call and an indication of the time required for the examination of each witness, if applicable; and
(e) any other information required by the Board.
Marginal note:Contents of reply
(4) A reply to a response to a case record must contain
(a) the documentary exhibits on which the party intends to rely, including any expert reports and sworn statements or solemn declarations of lay witnesses, if applicable;
(b) a list of the documentary exhibits, if applicable;
(c) a list of witnesses the party intends to call and an indication of the time required for the examination of each witness, if applicable; and
(d) any other information required by the Board.
Marginal note:Filing in an oral hearing
36 Unless otherwise ordered by the Board or the case manager, in the case of an oral hearing, a collective society must file a case record and an objector must file a response to the case record.
Marginal note:Filing and service
37 (1) Any case record, any response to the case record and any reply to the response must be filed and served within the time limits set by the Board.
Marginal note:Paper copies
(2) Unless the Board orders otherwise, in addition to the electronic filing referred to in rule 11, two paper copies of any case record, response to the case record and reply to the response must be filed with the Board.
Marginal note:Legal brief
38 (1) The Board may, in response to a request of a party or on its own initiative and on terms that it considers appropriate, allow a party to file a legal brief and allow other parties to file a response to that legal brief.
(2) The legal brief and any response to the legal brief must be served on each other party.
39 The Board may grant leave to amend a statement of issues to be considered, case record, response to a case record, reply to a response to a case record, legal brief or response to a legal brief on the terms the Board considers appropriate.
Written or Oral Hearing
Marginal note:Written or oral hearing
40 The Board may hold a written or oral hearing in respect of any matter before it.
Marginal note:Simultaneous interpretation services
41 A party that requires simultaneous interpretation services must submit a request to the Board at least 30 days before the date of the hearing.
Marginal note:Oral hearing open to public
42 (1) Unless the Board orders otherwise, oral hearings of the Board on the merits of a matter are open to the public.
Marginal note:In camera
(2) A party may submit a request to the Board for all or a portion of an oral hearing not to be open to the public. The Board may make any order that it considers appropriate in the circumstances.
Marginal note:Documents received during oral hearing
43 A document that is not part of a case record, a response to a case record or a reply to a response to a case record must not be received as evidence at an oral hearing unless it is to be used only for the purposes of cross-examination of a witness or the Board permits it to be received as evidence.
44 The Board may cause a transcript, recording or other record of an oral hearing on the merits of a matter to be prepared.
Marginal note:Supplemental information
45 The Board may, at any time in a proceeding, require a party to provide it with information or documents to supplement the record.
Marginal note:Confidentiality order
46 (1) At any time in a proceeding, parties may file a joint request for a confidentiality order with the Board. The request must specify the manner in which the information to be designated as confidential or highly confidential is to be treated and must be accompanied by a proposed confidentiality order.
Marginal note:Documents filed before commencement
(2) A party may file confidential or highly confidential information before the commencement of a proceeding only with leave of the Board.
(3) In the absence of an agreement among the parties, a party may file its own request for a confidentiality order with the Board, together with a proposed confidentiality order and a statement indicating the reasons why the parties could not agree.
(4) Once a confidentiality order has been made, a party may designate the information that it filed with the Board in the proceeding as confidential or highly confidential.
Marginal note:Warranted designation
(5) The Board may, in response to a request from a party or, after giving the parties notice, on its own initiative, determine whether the designation is warranted and make any order that it considers appropriate.
Marginal note:Public record
(6) Any document that is filed with the Board in relation to a matter and any related proceeding is placed on the public record, unless the document has been designated as confidential or highly confidential.
47 The Board may order that a party request leave before designating any information as confidential or highly confidential as well as provide an explanation that justifies the designation.
Marginal note:Expert witness report
48 (1) Every party who, in a proceeding before the Board, intends to introduce evidence given by an expert witness must
(a) file with the Board and serve on each other party an expert witness report that
(i) contains a summary of the expert’s report,
(ii) describes the qualifications of the expert with respect to the issues addressed in the report,
(iii) contains the expert’s curriculum vitae,
(iv) sets out the issues addressed in the report,
(v) sets out the expert’s opinion respecting each issue addressed in the report,
(vi) in the case of a report provided in response to another expert’s report, sets out the points of agreement and disagreement with the other expert’s opinions,
(vii) sets out the grounds supporting each expressed opinion,
(viii) describes the facts and assumptions on which the opinions in the report are based,
(ix) includes any literature, documents and data specifically relied on in support of the opinions expressed,
(x) sets out a complete description of the methodology on which the expert has relied, and
(xi) sets out any caveats or qualifications necessary to render the report complete and accurate, including those relating to any insufficiency of data or research and any issues that fall outside the expert’s field of expertise;
(b) file with the Board and serve on each other party any form that is specified by the Board in relation to the expert witness report; and
(c) ensure that the expert witness is available for examination and cross-examination at the hearing.
Marginal note:Refusal of Board
(2) The Board may refuse to consider expert witness evidence if that evidence addresses issues not mentioned in any document filed under subrule 35(1) or rule 36.
Marginal note:Appointment of independent experts
49 (1) The Board may, at any time, by order, appoint one or more independent experts to inquire into and report on any question of fact or give their opinion relevant to an issue in a proceeding.
Marginal note:Expert report
(2) The report of an independent expert is to be placed on the public record of the proceeding.
(3) Any party may make submissions to the Board with respect to the terms of the appointment of an independent expert and may file a written response to the independent expert’s report.
50 The Board may, in response to a request from a party or on its own initiative, issue a subpoena for the attendance of a witness at the hearing or for the production of documents.
PART 6Parties and Proceedings
Marginal note:Severance and Consolidation
51 At any time the Board may, on its own initiative or at the request of any party, order that any proceeding be severed or, that any two or more proceedings be consolidated, heard together, heard consecutively or severed.
Marginal note:Request for leave to intervene
52 (1) Any person with an interest in a proceeding that is before the Board and that is in respect of a proposed tariff or an application under subsection 71(1) of the Act, may make a request to the Board for leave to intervene.
Marginal note:Filing of request
(2) The request for leave to intervene must be filed with the Board as soon as feasible after the commencement of a proceeding and served on each other party.
Marginal note:Form and content
(3) The request for leave to intervene must be in writing and must set out
(a) the name and address of the requester and the requester’s authorized representative, if any;
(b) an explanation of why the intervention is necessary and the interest of the requester in the matter;
(c) a concise statement of the facts on which the request is based;
(d) the issues that the requester intends to address; and
(e) an indication of how the requester wishes to participate in the proceeding.
(4) Any party may make submissions with respect to the request for leave to intervene by filing them with the Board and serving a copy of them on the requester within 15 days after the day on which the served request to intervene is received.
Marginal note:Factors considered by the Board
(5) In determining whether to grant leave to intervene, the Board must consider
(a) whether the requester has an interest in the proceeding that is sufficient to warrant the intervention;
(b) whether the requester will present information or submissions that are useful and different;
(c) whether the intervention will prejudice any party to the proceeding;
(d) whether the intervention will interfere with the fair and expeditious conduct of the proceeding; and
(e) any other factor that the Board considers appropriate.
Marginal note:Decision of the Board
(6) The Board may grant or deny the request for leave to intervene and impose any condition or restriction that it considers appropriate, including a restriction on the scope of the intervention.
Marginal note:Notice to parties
(7) The Board must notify the parties to the proceeding of its decision.
(8) Subject to any confidentiality order and any restrictions imposed by the Board under subrule (6), each party must serve on the intervener or its authorized representative any document that is filed by a party after the day on which the parties are notified of the Board’s decision to grant the request for leave to intervene.
Marginal note:Letter of comment
53 (1) Any interested person that does not intend to request leave to intervene but wishes to make comments on the proceeding may file with the Board a letter of comment before
(a) the day fixed by the Board or the case manager as the final day on which any party may present their written or oral submission; or
(b) any other day specified by the Board or case manager.
Marginal note:Contents of letter
(2) The letter of comment must contain
(a) comments on the proceeding;
(b) a description of the nature of the person’s interest in the proceeding; and
(c) any relevant information that will explain or support the person’s comments.
Marginal note:Copies to parties and on public record
(3) The Board must provide all parties with a copy of any letter of comment and must place a copy of the letter on its public record of the proceeding.
(4) A party may, within 15 days after the day on which the party receives a letter of comment, file a response with the Board and serve a copy of that response on all parties.
Marginal note:Consideration by the Board
(5) A letter of comment that is filed with the Board and any response to that letter must be considered by the Board.
(6) A person that files a letter of comment with the Board does not become a party to the proceeding.
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