Pipeline Arbitration Committee Procedure Rules, 1986 (SOR/86-787)

Short Title

1 These Rules may be cited as the Pipeline Arbitration Committee Procedure Rules, 1986.

Definitions

2 In these Rules,

Act

Act means the National Energy Board Act; (Loi)

applicant

applicant means an owner of lands or a company that, pursuant to section 75.12 of the Act, serves a notice of arbitration on the Minister; (requérant)

Committee

Committee means an Arbitration Committee; (comité)

hearing

hearing means a hearing held by a Committee pursuant to paragraph 75.16(a) of the Act; (audience)

notice of arbitration

notice of arbitration means a notice of arbitration referred to in section 75.12 of the Act; (avis d’arbitrage)

party

party, in respect of a hearing, means the applicant, the respondent and any person designated as a party to the hearing pursuant to section 17; (partie)

respondent

respondent means an owner of lands or a company on whom a notice of arbitration is served pursuant to section 75.12 of the Act; (intimé)

secretariat

secretariat means the secretariat established pursuant to subsection 47(1). (secrétariat)

Application

• 3 (1) These Rules apply to proceedings at a hearing.

• (2) For the purpose of ensuring the expeditious conduct of hearings, and in so far as the rights of the parties are not unduly prejudiced, the Committee may, in respect of a hearing, order that these Rules or any provision thereof not apply to that hearing or apply in part only, and may extend or shorten the time fixed by these Rules for doing any act or serving or filing any notice or document.

Notice of Arbitration

• 4 (1) Where, pursuant to section 75.12 of the Act, a company serves notice of arbitration on an owner of lands and the Minister, the notice of arbitration shall

  • (a) be dated and signed by the counsel for the company or by an officer authorized to sign on behalf of the company;

  • (b) set out the grounds for the arbitration, a clear and concise statement of the relevant facts and the nature of the decision sought;

  • (c) be divided into consecutively numbered paragraphs, each of which shall be confined as nearly as possible to a separate and distinct portion of the subject-matter of the notice of arbitration;

  • (d) set out the name and address of the company and, if the notice of arbitration is signed by the counsel for the company, the name and address of the counsel;

  • (e) set out the description of the lands of the owner required by the company and be accompanied by a plan showing the location of the lands;

  • (f) set out the amount of compensation, if any, that the company is offering to pay to the owner for the lands;

  • (g) be accompanied by an appraisal report showing all the facts taken into account by the company in arriving at the amount of compensation offered for the lands and stating, where applicable,

    • (i) the value assigned by the company to the lands exclusive of the improvements to or, things grown on the lands, including a consideration of the current use of the lands, the zoning, the developments projected and any other factor that might affect the lands,

    • (ii) the value assigned by the company to the improvements to and things grown on the lands, and

    • (iii) the estimated amount of the damage to the remaining lands of the owner;

  • (h) be accompanied by a certified copy of the title of the lands or a current abstract of the title of the lands;

  • (i) set out the names and addresses of all the parties known by the company to have an interest in the lands;

  • (j) set out that the respondent has 30 days in which to file his reply; and

  • (k) where the notice of arbitration is served to settle any claim for damages by the owner arising out of the operations of the company, contain a complete description and evaluation of the damages and set out the amount that the company is offering to pay, if any.

• (2) Where, pursuant to section 75.12 of the Act, an owner of lands serves notice of arbitration on a company and the Minister, the notice of arbitration shall

  • (a) be dated and signed by the owner or the counsel for the owner;

  • (b) set out the grounds for the arbitration, a clear and concise statement of the relevant facts and the nature of the decision sought;

  • (c) be divided into consecutively numbered paragraphs, each of which shall be confined as nearly as possible to a separate and distinct portion of the subject-matter of the notice of arbitration;

  • (d) set out the name and address of the owner and, if the notice of arbitration is signed by the counsel for the owner, the name and address of the counsel;

  • (e) set out the description and the location of the lands required by the company;

  • (f) set out the estimated expenses of relocation for the owner, if applicable;

  • (g) set out that the respondent has 30 days in which to file his reply; and

  • (h) where the notice of arbitration is served to settle any claim for damages by the owner arising out of the operations of the respondent, set out a complete description and evaluation of the damages.

5 Where an applicant serves a notice of arbitration or any supporting or explanatory document required to be furnished, he shall serve

• (a) one copy on the Minister; and

• (b) one copy on the respondent and on each person known by the applicant to have an interest in the lands in question.

• 6 (1) Where, pursuant to subsection 75.13(1) of the Act, the Minister is served with a notice of arbitration, the Minister shall

  • (a) notify the applicant, the respondent and each person known by the Minister to have an interest in the lands in question of the names and addresses of the members of the Committee on which the notice or arbitration has been served; or

  • (b) notify the applicant, the respondent and each person known by the Minister to have an interest in the lands in question that, in accordance with subsection 75.13(2) of the Act, he will take no action with respect to the notice of arbitration.

• (2) Until the Minister has notified the applicant, the respondent and each person known by the Minister to have an interest in the lands in question, in accordance with subsection (1), service of any relevant document to the Committee may be effected on the secretariat.

Reply

7 Where a respondent intends to oppose a notice of arbitration at a hearing, he shall serve

• (a) his reply to the notice of arbitration on the Committee, together with any supporting or explanatory documents; and

• (b) one copy of his reply and of any supporting or explanatory documents on the applicant and all other parties to the hearing.

• 8 (1) Where the respondent is a company that is not the owner of the lands in question, the reply referred to in section 7 shall

  • (a) be dated and signed by the counsel for the company or by an officer authorized to sign on behalf of the company;

  • (b) set out a clear and concise statement of the company’s reasons for opposing the decision that the owner sought in his notice or arbitration;

  • (c) be divided into consecutively numbered paragraphs, each of which shall be confined as nearly as possible to a separate and distinct portion of the subject-matter of the reply;

  • (d) set out the name and address of the company and, if the reply is signed by the counsel for the company, the name and address of the counsel;

  • (e) admit or deny each fact alleged in the notice of arbitration;

  • (f) set out a description of the lands required by the company, if the company disagrees with the description of the lands set out in the owner’s notice of arbitration, and be accompanied by a plan showing the location of the lands;

  • (g) set out the amount of compensation, if any, that the company is offering to pay to the owner;

  • (h) be accompanied by an appraisal report showing all the facts taken into account by the company in arriving at the amount of compensation offered and setting out, where applicable,

    • (i) the value assigned by the company to the lands, exclusive of the improvements to or things grown on the lands, including a consideration of the current use of the lands, the zoning, the developments projected and any other factor that might affect the lands,

    • (ii) the value assigned by the company to the improvements to or things grown on the lands, and

    • (iii) the estimated amount of the damage to the remaining lands of the owner;

  • (i) be accompanied by a certified copy of the title of the lands or a current abstract of the title of the lands;

  • (j) set out the names and addresses of all the parties known by the company to have an interest in the lands; and

  • (k) where the notice of arbitration is served to settle any claim for damages by the owner arising out of the operations of the company, set out a complete description and evaluation of the damages and the amount the company is offering to pay, if any.

• (2) Where a respondent is the owner of the lands in question, the reply referred to in section 7 shall

  • (a) be dated and signed by the owner or the counsel for the owner;

  • (b) set out a clear and concise statement of the owner’s reasons for opposing the decision that the company sought in its notice of arbitration;

  • (c) be divided into consecutively numbered paragraphs, each of which shall be confined as nearly as possible to a separate and distinct portion of the subject-matter of the reply;

  • (d) set out the name and address of the owner and, if the reply is signed by the counsel for the owner, the name and address of the counsel;

  • (e) admit or deny each fact alleged in the notice of arbitration;

  • (f) set out the estimated expenses of relocation for the owner, if applicable; and

  • (g) where the notice of arbitration is served to settle any claim for damages by the owner arising out of the operations of the company, set out a complete description and evaluation of the damages.

9 Subject to subsection 3(2), a respondent shall serve his reply on the applicant within 30 days after the date of service of the notice of arbitration.

Service

• 10 (1) Subject to subsections (2) and (3) and section 11, service of a notice of arbitration, a notice of hearing, a reply or any other notice or document shall be effected by personal service.

• (2) Personal service of a notice of arbitration, a notice of hearing, a reply or any other notice or document on the Minister or a Committee is effected by posting a copy of the notice of arbitration, notice of hearing, reply or other notice or document by registered mail to the Minister or Committee and the date of service is the second day after the day the notice of arbitration, reply or other notice or document is posted at a post office.

• (3) Personal service of a notice of arbitration, a notice of hearing, a reply or any other notice or document on a person is effected by leaving a copy of the notice of arbitration, reply or other notice or document with the person.

• (4) Personal service of a notice of arbitration, a notice of hearing, a reply or any other notice or document on a company is effected

  • (a) by leaving a copy of the notice of arbitration, notice of hearing, reply or other notice or document with an officer of the company, in which case the date of service is the date the copy is left; or

  • (b) by posting the notice of arbitration, notice of hearing, reply or other notice or document by registered mail to the address of the company, in which case the date of service is the second day after the day the notice of arbitration, notice of hearing, reply or other notice or document is posted at a post office.

• (5) Personal service of a notice of arbitration, a notice of hearing, a reply or any other notice or document on a municipal corporation is effected by leaving a copy of the notice of arbitration, notice of hearing, reply or other notice or document with the warden, reeve, mayor or clerk.

Substituted Service

• 11 (1) Subject to subsection (2), when a company has been unable to effect personal service of a notice of arbitration on a person after having made reasonable attempts to do so, the Committee may, on application by the company, order substituted service of the notice on the person by one or more of the methods referred to in subsection 13(1).

• (2) The Committee shall not order substituted service of a notice of arbitration on a person unless

  • (a) the Committee is satisfied that personal service of the notice on the person is impractical in the circumstances; and

  • (b) the information provided in accordance with paragraph 12(c) discloses that there is a reasonable possibility that substituted service of the notice on the person will bring the notice to the attention of that person.

12 Where, pursuant to subsection 11(1), a company applies for an order, it shall file with the Committee five copies of its written application, together with an affidavit disclosing

• (a) the efforts made to effect personal service;

• (b) the prejudice to any person that would result from further efforts at personal service; and

• (c) the last known address of the person on whom a notice of arbitration is required to be served, the address of the residence or place of business of the person or any other place thought to be frequented by the person, the names and addresses of any persons who may be in communication with the person, or any other information respecting where the person might be found.

• 13 (1) Substituted service of a notice of arbitration may be effected by one or more of the following methods:

  • (a) leaving the notice of arbitration with an adult person at the residence or place of work or business of the person or at any other place thought to be frequented by the person;

  • (b) leaving the notice of arbitration with any other adult person who may be in communication with the person;

  • (c) sending the notice of arbitration by registered mail to the last known address of the person;

  • (d) publishing the notice of arbitration in one or more publications in general circulation in the area where the person was last known to be or is thought to be; or

  • (e) any method that appears to the Committee likely to bring the notice of arbitration to the attention of the person.

• (2) [Revoked, SOR/93-240, s. 2]

Service of Order

14 Where a notice of arbitration is served by substituted service ordered by a Committee pursuant to subsection 11(1), it shall be accompanied by a copy of the order of the Committee ordering the substituted service unless the Committee orders otherwise.

Notice Deemed Received

15 Where a notice of arbitration is served by substituted service ordered by a Committee pursuant to subsection 11(1), it shall be deemed to have been received by the person entitled thereto on the day following the day on which each method of substituted service ordered by the Committee was carried out or on such later day as the Committee may fix in the order for substituted service of that notice of arbitration.

Proof of Service

• 16 (1) Proof of service of any notice of arbitration or other notice or document that is required to be served by an owner of lands shall be filed with the Committee at the time of the hearing, except where the notice of arbitration or other notice or document was given to or served on the Committee or the Minister.

• (2) Proof of service of any notice of arbitration or other notice or document that is required to be served by a company shall be filed with the Committee within 10 days of the service.

17 Where a person who has an interest in a hearing and who has not been served notice of arbitration under section 75.12 of the Act requests the Committee to add him as a party to the hearing, the Committee may designate that person as a party to the hearing on such terms and conditions as the Committee may determine.

Documents

18 The Committee shall, during regular business hours, make any notice or document filed with the Committee in relation to a hearing available for inspection by a party to the hearing and shall allow the party to make copies of the notice or document at his own expense.

• 19 (1) Where a document is referred to in a notice of arbitration or a reply, any party to a hearing may, in writing, request the party who has the document or any other relevant document in his possession or control to produce the document for inspection by him or his counsel and to allow him or his counsel to make copies of the document at his own expense.

• (2) Where, pursuant to subsection (1), a party to a hearing is requested to produce a document and fails to do so the Committee shall refuse to allow the party to put the document in evidence at the hearing to his own advantage unless the Committee is satisfied that the party had sufficient reason for failing to comply with the request.

• (3) Where a party fails to produce a document requested pursuant to subsection (1), the party making the request may introduce secondary evidence of the document.

Additional Information

• 20 (1) Where a notice of arbitration has been served on a Committee, the Committee may, before making a determination on the matter referred to in the notice, request any party to the hearing to furnish the Committee with such information or documents as the Committee requires to make a determination.

• (2) Where, pursuant to subsection (1), a Committee requests a party to furnish it with information or documents, the party shall do so.

Formulation and Settlement of Issues

• 21 (1) Where it appears to the Committee that the statements contained in a notice of arbitration or a reply referred to in section 7 do not sufficiently raise or disclose the issues in dispute between the parties to a hearing, the Committee may order the parties to formulate the issues in dispute.

• (2) Where, pursuant to subsection (1), a Committee directs the parties to a hearing to formulate the issues in dispute and the parties fail to do so, the Committee may formulate the issues in dispute.

Conference

22 A Committee may direct the parties to a hearing or their counsel to appear before three members of the Committee at a specified time and place for a conference before or during the hearing or to make submissions in writing, for the purpose of formulating issues and considering

• (a) the simplification of issues;

• (b) the necessity or desirability of amending the notice of arbitration or the reply to clarify, amplify or limit the issues;

• (c) the making of admissions of certain facts, the proving of certain facts by affidavit or the use by any party of documents of a public nature;

• (d) the procedure to be followed at the hearing;

• (e) the mutual exchange between the parties of supporting documents and exhibits proposed to be submitted at the hearing; and

• (f) such matters as may aid in the simplification of the evidence and the disposition of the proceedings.

Stay of Proceedings

23 Where, in any proceeding, the Committee requests a party to furnish further information, documents or submissions in writing, the Committee may order a stay of proceedings for such time as the Committee considers reasonable in the circumstances.

Incapacity

• 24 (1) Where a party to a hearing dies or becomes incapacitated after service of a notice of arbitration and prior to a final decision on or discontinuance of the hearing and the Committee is satisfied with the proof of the death or incapacity filed with the Committee, the Committee may postpone the hearing until the heirs, executors, administrators, guardians, trustees or other duly appointed representatives of the party are able to resume the proceedings.

• (2) Where within 60 days after the date on which a party to a hearing died or became incapacitated the proceedings have not resumed, the other parties to the hearing may invoke section 28.

Hearings

• 25 (1) A Committee shall serve a notice of hearing setting out the time, date and place of the hearing on the parties to the hearing at lease 30 days prior to the date fixed for the hearing.

• (2) Where a company receives a notice of hearing referred to in subsection (1), it shall, at least 20 days prior to the date of the hearing, serve a copy of the notice on any person known by the company to have an interest in the lands in question or an interest in all or any part of any compensation that may be awarded.

• 26 (1) Any person who proposes to appear at a hearing shall file a notice of appearance with the Committee at least 15 days prior to the date fixed for the hearing.

• (2) A Committee may admit any person who has not been served, in respect of a hearing, a notice of arbitration or a notice of hearing to the hearing if it is satisfied that the person has an interest in the lands in question.

27 A Committee may exclude witnesses from a hearing where a party to the hearing requests the exclusion.

28 Where, pursuant to subsection 25(1), a party to a hearing is served with a notice of hearing and fails to attend the hearing, the Committee may, if any party other than the company will be prejudiced by an unreasonable delay, proceed with the hearing and render its decision in the absence of that party.

29 Where a respondent fails to file a reply to a notice of arbitration within the time set out in section 9, the Committee may proceed with the hearing and dispose of the arbitration in the absence of that party.

30 A Committee may, whenever it considers it reasonable to do so, order that written briefs be filed by the parties to a hearing in addition to or, if the parties agree thereto, in lieu of oral argument.

31 Where a Committee commences a hearing, it shall proceed with the hearing from day to day as far as may be practicable in the opinion of the Committee.

Adjournments

• 32 (1) Subject to sections 28 and 29, the Committee may adjourn a hearing for such time, to such place and on such terms as it considers necessary.

• (2) A Committee may continue a hearing after an adjournment without serving a notice of hearing on the parties to the hearing where the parties attended the adjourned hearing.

• (3) Where a hearing is adjourned sine die, the Committee shall serve a notice of hearing on the parties to the hearing at least 10 days prior to the day on which the hearing is to resume.

• 33 (1) Where a party to a hearing wishes an adjournment and the other parties to the hearing agree to the adjournment, the party wishing the adjournment shall forthwith inform the Committee conducting the hearing.

• (2) Where a party to a hearing wishes an adjournment but not all the parties to the hearing agree to the adjournment, the party wishing the adjournment may, on written notice served on the other parties, appear before the Committee prior to the date fixed for the hearing and request an order for the adjournment of the hearing.

Subpoena

• 34 (1) A Committee may issue a subpoena ordering a person to testify under oath or to produce at a hearing any document relevant to the hearing.

• (2) A subpoena shall be in the form set out in the schedule and shall be signed by the Chairman of the Committee that issued it.

• 35 (1) No subpoena shall, without the leave of a Committee, be issued to compel the appearance of a witness who is, when served, more than 500 miles from the place where he is, by the terms of the subpoena, required to attend.

• (2) Leave may be granted under subsection (1) on an ex parte application.

• (3) No witness is bound to appear pursuant to a subpoena unless there has been paid or tendered to him conduct money in an amount sufficient for his fees and travelling expenses.

• (4) Where any other rule provides for a witness being required to attend for any purpose other than a hearing pursuant to a subpoena, subsection (3) applies and the witness is entitled to witness fees as though he were required to attend for a hearing.

Witnesses

36 A Committee may, where requested by a party to a hearing prior to the hearing, order any other party to the hearing to file with the Committee copies of all appraisal reports and other documentary evidence that that other party intends to introduce at the hearing, and the name, address and qualifications, in the case of an expert, of any witness that other party intends to call at the hearing.

37 Witnesses at a hearing shall be examined orally on oath, unless otherwise provided by these Rules.

• 38 (1) A Committee may, at any time prior to the commencement of a hearing and for sufficient reason, direct that a fact be proved by affidavit, that the affidavit of any witness be read at a hearing on such conditions as the Committee considers reasonable or that any witness be examined before three members of the Committee or any person who is appointed by it for that purpose and is authorized to administer oaths in the presence of the parties to the hearing or their counsel.

• (2) The Committee shall notify any witness referred to in subsection (1) of the time and place of examination.

• 39 (1) Where, pursuant to subsection 38(1), a witness is examined before three members of a Committee or a person appointed by it, the three members or the person shall take a deposition of the evidence of the witness and shall give the deposition to the Committee within 10 days after the examination, certified under the hand of the three members or person.

• (2) A deposition referred to in subsection (1) and certified as set out in that subsection is admissible in evidence at a hearing.

40 A Committee may order further evidence to be given orally or by deposition before the Committee, a member of the Committee or any other person who is appointed by the Committee for that purpose and is authorized to administer oaths.

Amendments

41 A Committee may, on such terms as it considers advisable, order an amendment to any pleading that, in the opinion of the Committee, may tend to prejudice or delay a fair hearing of the case if, in the opinion of the Committee, the amendment is necessary for the purposes of the hearing and for determining the real question in issue between the parties to the hearing.

Joint Proceedings

42 A Committee may, on such terms as it considers necessary, order that a matter or a proceeding in respect of a hearing be consolidated with a matter or proceeding in respect of any other hearing after it has considered representations from the parties to the hearings.

Defect in Form or Irregularity

43 No proceeding during a hearing shall be defeated by any objections based solely on defect in form or on any technical irregularity.

44 Where a Committee extends or shortens the time set out in these Rules for the filing of a reply, the time so extended or shortened shall be noted on the notice of arbitration or the reply, as the case may be, or in such manner as the Committee may prescribe.

Deposit

• 45 (1) Where a Committee awards compensation to an owner who has become incapacitated and is not represented, or to an owner who is absent or unknown, or whose whereabouts are unknown, the Committee may order the company to pay into the superior court of the province nearest to the lands affected the amount together with interest awarded as compensation to that owner and to deliver to the clerk of the court a certification of the decision of the Committee.

• (2) Where, pursuant to subsection (1), a Committee orders a company to pay an amount into a court, the company shall insert a notice of payment in a newspaper of general circulation within the county where the lands are situated or, if no newspaper is published in that county, in the official gazette of the province, and also in a newspaper of general circulation in the nearest county in which such a newspaper is published.

• (3) Where, pursuant to subsection (2), a company inserts a notice of payment in a newspaper or gazette, the notice shall be in such form and be inserted for such period as the Committee orders.

Application for Review

• 46 (1) Where a party to a hearing applies to a Committee to review, rescind or amend a Committee’s decision pursuant to section 75.22 of the Act, that party shall serve an application on the Committee and on all other parties who attended the hearing.

• (2) The application referred to in subsection (1) shall

  • (a) be dated and signed by the party making it;

  • (b) set out the full name and address of the party making it;

  • (c) set out the full names and addresses of the other parties who attended the hearing;

  • (d) set out the date and nature of the decision of the Committee that is the subject of the application;

  • (e) set out the type of decision sought;

  • (f) set out, where applicable, the reasons that the party making the application considers sufficient to cast doubt on the accuracy of the decision;

  • (g) set out, where applicable, any new circumstances that have arisen since the decision was made or the hearing was held;

  • (h) set out, where applicable, any new facts that have emerged since the decision was made or since the hearing was held;

  • (i) set out, where applicable, the facts that were not taken into consideration by the Committee when making the decision or during the hearing and that could not be discovered prior to the hearing notwithstanding that reasonable care was taken.

Secretariat

• 47 (1) The Minister may establish a secretariat to coordinate the activities of Committees.

• (2) Where the Minister establishes a secretariat, he shall publish the address for the secretariat in the Canada Gazette.

SCHEDULE(Section 34)National Energy Board Act Arbitration Committee

Subpoena

RE:

TO:

You are hereby summoned and required to attend before an Arbitration Committee at a hearing to be held at in the of on the day of 19 at the hour of o’clock in the , and so on from day to day until the hearing is concluded, to give evidence on oath relevant to the matters in question in the proceeding, and to bring with you and to produce at the aforesaid time and place (state precisely the documents to be produced).

DATED at , this day of 19

For the ARBITRATION COMMITTEE

Committee Chairman