National Energy Board Rules of Practice and Procedure, 1995 (SOR/95-208)

Short Title

1 These Rules may be cited as the National Energy Board Rules of Practice and Procedure, 1995.

Interpretation

2 In these Rules,

Act

Act means the National Energy Board Act; (Loi)

affidavit

affidavit includes a written affirmation; (affidavit)

application

application means an application made to the Board under the Act or any regulations made under the Act and includes a complaint; (demande)

complaint

complaint means a complaint made to the Board that alleges anything to have been done or omitted to have been done contrary to or in contravention of the Act or any regulations made under the Act; (plainte)

hearing officer

hearing officer means a person authorized to act on behalf of the Secretary at an oral hearing; (agent d’audience)

intervenor

intervenor means

• (a) an interested person who establishes an interest in a proceeding pursuant to section 28,

• (b) a person who files an answer to a complaint pursuant to section 19,

• (c) where two or more applications are the subject of a single proceeding, an applicant with respect to each other application in that proceeding, or

• (d) a purchaser of gas who files an objection with the Board pursuant to section 29; (intervenant)

party

party means, in respect of a proceeding, a person who makes an application or an intervenor; (partie)

proceeding

proceeding means a written or oral hearing, whether the hearing is public or non-public, brought before the Board under the Act or any regulations made under the Act, from the time an application is filed with the Board or from the time the Board issues directions on procedure in respect of an inquiry or hearing into any matter by the Board under subsection 15(3) of the Act. (procédure)

PART IGeneral

Application of This Part

• 3 (1) This Part applies

  • (a) to proceedings referred to in subsection 15(3) of the Act;

  • (b) to proceedings brought under subsection 21(1) of the Act;

  • (c) subject to section 48, to proceedings brought under Part III of the Act;

  • (d) to proceedings brought under Part IV of the Act;

  • (e) to proceedings brought under section 104 of the Act;

  • (f) except section 18, to proceedings brought under Division II of Part VI of the Act; and

  • (g) to proceedings brought under the National Energy Board Act Part VI (Oil and Gas) Regulations, respecting applications for orders authorizing the exportation or importation of oil or gas and applications for amendments to gas export sales contracts or gas import purchase contracts.

• (2) Subject to any regulations made pursuant to sections 58.39, 107, 119.01, 119.094 and 127 of the Act, at any time in a proceeding, where considerations of public interest and fairness so require, the Board may, by order, provide that this Part applies to any proceedings other than those referred to in subsection (1).

Dispensing with or Varying Rules

• 4 (1) At any time in a proceeding, where considerations of public interest and fairness so require, the Board may

  • (a) dispense with or vary these Rules or any part thereof; or

  • (b) extend or abridge the time fixed by these Rules or otherwise fixed by the Board, and may do so of its own volition or in response to a motion by any party whether or not the motion to extend or abridge the time is made after the time so fixed has expired.

• (2) Where the Board dispenses with or varies the Rules or extends or abridges the time fixed by the Rules or by the Board under subsection (1), the Board shall forthwith notify all parties and any interested persons and shall issue directions in respect of the procedure appropriate to the proceedings or fix the time in which to conduct the proceedings.

Computation of Time

5 Where under these Rules the Board fixes a time limit, it shall do so taking into consideration the fair conduct of the proceeding.

6 Where reference is made to a number of days for the doing of a thing, it shall mean calendar days.

7 Where the time fixed for the doing of a thing expires or falls on a holiday or a Saturday, the thing may be done on the day next following that is not a holiday or a Saturday.

Service

• 8 (1) Subject to subsections (7) and (8), service of any document may be effected by hand delivery, mail, courier, telex, facsimile or other means of written or electronic communication, if the person being served has the facilities for receiving a document in such manner.

• (2) Any document that must be served shall set out the name of each person or group of persons on whom it is to be served, the Board’s file number and hearing order number and a short phrase summarizing the nature of the proceeding.

• (3) Subject to subsection (4), the date of service of a document is the date on which the person being served or the person’s authorized representative receives the document.

• (4) A document that is received by the person being served or the person’s authorized representative after five o’clock in the afternoon at the place of service shall be considered to be served on the next business day.

• (5) Where a person serves a document, the person shall, at the Board’s request, file an affidavit with the Board that sets out on whom the document was served and the means taken to effect service.

• (6) Where a person is required to serve a document on more than one party, service on each party shall be effected on the same day.

• (7) Where an oral hearing is in progress, service of any document in respect of the hearing may be effected by making a copy of the document available to each party present at the hearing and by giving a copy of the document to any other party who requests one.

• (8) The service that is required under paragraph 34(1)(a) and subsection 104(2) of the Act and under subsection 40(4) of these Rules shall be personal service and shall be effected in accordance with Part 3 of the Federal Court Rules, 1998, except that

  • (a) personal service on Her Majesty in right of Canada shall be effected in the manner prescribed in the Crown Liability and Proceedings (Provincial Court) Regulations; and

  • (b) personal service on Her Majesty in right of a province shall be effected by leaving a copy of the document with a lawyer employed at the principal office of either the provincial Department of Justice or the Attorney General, as the case may be.

• (8.1) For greater certainty, a reference in the Federal Court Rules, 1998 to the word “Court” is deemed to be a reference to the Board.

• (9) Where a person serves a document by electronic means, the person shall provide an original hard copy of the document to the person served within a reasonable period after the document is served.

Filing of Documents

• 9 (1) Subject to subsection (2), the filing of any document with the Secretary by hand delivery, mail, courier, telex, facsimile or other means of written or electronic communication, if the Board has the facilities for receiving a document in such manner, shall constitute filing with the Board.

• (2) Where an oral hearing is in progress, the filing of any document with the hearing officer shall constitute filing with the Board.

• (3) Subject to subsection (4), the date of filing a document with the Board is the day on which the Secretary or the hearing officer receives the document in accordance with subsection (1) or (2), respectively.

• (4) A document that is received by the Board after regular business hours, which are from eight o’clock in the forenoon to five o’clock in the afternoon, shall be considered to be filed on the next business day.

• (5) Every document that is filed with the Board in respect of a proceeding shall set out the Board’s file number and hearing order number and a short phrase summarizing the nature of the proceeding.

• (6) Where a person files a document less than five days prior to the commencement of an oral hearing, the person shall bring to the hearing a copy of the document for the Board and, if service of the document is required, for any party present.

• (7) Where a person is required to file a document with the Board and serve the document on one or more parties, the filing and the service shall be effected on the same day.

• (8) Where a person files a document with the Board by electronic means, the person shall provide an original hard copy of the document to the Board within a reasonable period after the document is filed.

Amending of Documents

• 10 (1) In a proceeding, a party may

  • (a) make minor amendments to any documents filed with the Board; and

  • (b) with leave of the Board, make substantive amendments to any documents filed with the Board.

• (2) In a proceeding, where the Board finds that a document or any part thereof may prejudice, embarrass or delay the fair conduct of the proceeding, the Board shall so notify the parties and may order that, unless the document or part thereof is amended within the time limit set out in the notice, the document or part thereof be struck out.

• (3) Where a party, in accordance with this section, amends any document or part thereof

  • (a) each amended page shall indicate

    • (i) the date of the amendment, and

    • (ii) the portion of the page amended by means of a vertical line, an asterisk or other similar marking, in the margin opposite to the amendment; and

  • (b) each amendment shall be accompanied by a statement explaining the nature of the amendment.

Affidavits

• 11 (1) Where a person files a document with the Board, the Board may require the person to verify the document or any part thereof by affidavit.

• (2) Where the Board requires verification in accordance with subsection (1), the Board shall

  • (a) in the case of an oral hearing that is in progress, orally inform the person of the document or part thereof that must be verified and the time within which verification is to be provided; and

  • (b) in any other case, serve a notice on the person indicating the document or part thereof that must be verified and the time within which verification is to be provided.

• (3) Where a person does not comply with a requirement to verify made in accordance with subsection (1), the Board may strike out the document or part thereof that was not verified.

• 12 (1) Every affidavit in a proceeding shall be filed with the Board.

• (2) Where an affidavit is made as to belief, the grounds on which the belief is based shall be set out in the affidavit.

Questions of Law

• 13 (1) Where, in the opinion of the Board, a question or issue of law, of jurisdiction or of practice or procedure should be decided at any time in a proceeding, the Board may direct that the question or issue

  • (a) be raised for a determination by the Board; or

  • (b) be referred to the Federal Court of Appeal for hearing and determination.

• (2) The Board may, pending the determination of the question or issue referred to in subsection (1), stay the whole or any part of the proceeding.

Contents and Form of Application

14 Every application shall be in writing, signed by the applicant or the applicant’s authorized representative and filed with the Board.

• 15 (1) Every application shall

  • (a) contain a concise statement of the relevant facts, the provisions of the Act or any regulations made under the Act under which the application is made and the nature of, and justification for, the decision or order sought;

  • (b) contain, in addition to the information that is required by the Act and any regulations made under the Act, any other information that explains or supports the application, including information referred to in published policies and guidelines of the Board; and

  • (c) set out the name, address, telephone number and any other telecommunications numbers of the applicant and the applicant’s authorized representative, if any.

• (2) Every application shall be divided into consecutively numbered paragraphs, each of which shall be confined as nearly as is practicable to a distinct portion of the subject-matter of the application.

• 16 (1) Where any information referred to in section 15 is not filed with the application, the applicant shall attach to the application a statement

  • (a) where the information is already in the Board’s possession, identifying the information and the circumstances under which it came into the possession of the Board;

  • (b) where the information is unavailable to the applicant at the time of filing, identifying the date on which the applicant intends to file the required information; or

  • (c) where the applicant objects to the filing of the information, setting out the objection and the grounds therefor.

• (2) Where the Board determines that the grounds for the objection referred to in paragraph (1)(c) are not sufficient, the Board shall so inform the applicant and the applicant shall file the information.

Production of Documents

17 Unless leave of the Board is granted, where, at any time in a proceeding, a person intends to rely on a document other than a decision or order of or document released by the Board, the person shall

• (a) file the document with the Board and serve a copy of it on all parties; or

• (b) where the document is already in the Board’s possession, file a statement identifying the document and the circumstances under which it came into the possession of the Board.

Additional Information

18 At any time in a proceeding, the Board may require a party to provide such further information, particulars or documents as may be necessary to enable the Board to obtain a full and satisfactory understanding of the subject-matter of the proceeding.

Complaints

19 A complaint shall be served by the complainant on any person whose conduct is the subject of the complaint and that person may, within 20 days after receipt of the complaint, file a written answer with the Board and shall serve a copy of any answer on the complainant.

Failure to Comply

• 20 (1) Where an applicant fails to provide the information described in sections 15 and 16 or does not respond to a request for information from the Board or any other party, the Board may stay the application until the information is provided, whether or not the application has been set down for a hearing.

• (2) Where a party does not comply with these Rules or any directions issued by the Board, the Board may stay the proceeding until the Board is satisfied that the Rules or directions have been complied with or may take such other steps as are just and reasonable in order to conduct a fair proceeding.

• (3) Where for any reason an application or proceeding has been stayed for five years pursuant to subsection (1) or (2) respectively, the application that has been stayed or the application giving rise to the proceeding that has been stayed shall be considered to have been withdrawn and shall be returned to the applicant.

PART IIPublic Hearings

General

21 Subject to section 48, this Part applies to the conduct of public hearings before the Board that are required by the Act or held pursuant to subsection 15(3) or 24(3) of the Act, whether the evidence in respect of the hearing is in written or oral form.

• 22 (1) The Board may determine that a proceeding be disposed of by an oral or a written public hearing and may invite submissions from interested persons in order to make that determination.

• (2) Notwithstanding subsection (1), where necessary at any time in a proceeding, the Board may order that the proceeding be disposed of by an oral public hearing in substitution for a written public hearing.

Hearing Order

• 23 (1) The Board

  • (a) shall issue a hearing order, containing the procedural details applicable to the hearing, accompanied by a notice of public hearing, where an application is to be disposed of by means of an oral public hearing; and

  • (b) may, if necessary, issue a hearing order, containing the procedural details applicable to the hearing, which may be accompanied by a notice of public hearing, where an application is to be disposed of by means of a written public hearing or where a proceeding is commenced by the Board under subsection 15(3) of the Act.

• (2) Where the Board issues a notice of public hearing in accordance with subsection (1), other than where the notice is issued pursuant to section 35 of the Act, the applicant shall, within such time limit as the Board may direct,

  • (a) publish the notice in such publications as the Board may direct; and

  • (b) serve a copy of the notice on such persons as the Board may direct.

• (3) An applicant referred to in subsection (2) shall file with the Board an affidavit that sets out the title and date of each publication in which the notice of public hearing was published pursuant to paragraph (2)(a) and the means taken to effect service pursuant to paragraph (2)(b).

• (4) Where the Board does not issue a hearing order, it shall notify interested persons of the hearing and the procedure to be followed in respect thereof.

Public Inspection

24 Where the Board issues a hearing order,

• (a) the applicant shall keep available at the applicant’s business address, for public inspection during regular business hours, a copy of the application and the record as described in subsections 36(7) and 37(5); and

• (b) the Board shall keep available for public inspection in the Board’s library

  • (i) a copy of the application and all documents related thereto, or

  • (ii) in the case of the Board acting on its own motion under subsection 15(3) of the Act, all documents related to the proceeding.

Formulation of Issues

• 25 (1) The Board may formulate issues to be considered in a proceeding and shall notify parties in respect thereof if, in the opinion of the Board,

  • (a) the documents filed with the Board do not sufficiently raise the matters in issue in the proceeding;

  • (b) the formulation of issues would assist the Board in the conduct of the proceeding; or

  • (c) the formulation of issues would assist the parties in participating more effectively in the proceeding.

• (2) To assist the Board in formulating issues in accordance with subsection (1), the Board may invite parties to propose issues or to suggest amendments to any formulated issues.

• (3) Any party who proposes an issue pursuant to subsection (2) shall explain the issue’s relevance and the justification for considering it in the proceeding.

Written Submissions or Conference

26 The Board may direct parties to make written submissions for the purpose of considering matters that relate to

• (a) the clarification or simplification of issues;

• (b) the necessity or desirability of amending an application, notice of motion, answer, intervention or reply for the purpose of clarification, amplification or limitation;

• (c) the admission of certain facts or the verification of those facts by affidavit, or the use by any party of documents of a public nature;

• (d) the settling of matters that relate to information requests;

• (e) the procedure to be adopted in the proceeding;

• (f) the exchange of documents among the parties; and

• (g) any other matter that could aid in the conduct and disposition of the proceeding.

27 The Board may convene the parties to a conference

• (a) to formulate issues as described in section 25; or

• (b) to consider the matters described in section 26.

Interventions

• 28 (1) Where a hearing order has been issued pursuant to section 23, any interested person may intervene in the proceeding by filing with the Board and serving on the applicant, if any, on or before the date set out in the order, a written intervention that

  • (a) in the case of an oral hearing, states whether the person intends to appear at the hearing and the official language in which the person wishes to be heard;

  • (b) sets out the name of the person and any authorized representative of the person and the mailing address, address for personal service, telephone number and any other telecommunications numbers of the person or the person’s authorized representative;

  • (c) establishes that the person’s interest justifies intervenor status in the proceeding; and

  • (d) subject to subsection (2), states the issues that the person intends to address at the hearing or, where the person does not intend to participate actively at the hearing, states the reasons why the person’s interest justifies intervenor status in the proceeding.

• (2) Where, by reason of an inability or insufficient time to study an application, a person is unable to include in the written intervention the information required by paragraph (1)(d), the person shall

  • (a) provide a statement in the written intervention explaining why the person was unable or why there was insufficient time to study the application; and

  • (b) within 15 days after the date of service of a copy of the application or within 15 days after the date of filing of the written intervention, whichever is the later, file with the Board and serve on the applicant, if any, a supplement to the written intervention containing the information required by paragraph (1)(d).

• (3) The Board may accept or disallow an intervention depending on whether the requirements set out in subsection (1) have been met and in either case the Board shall notify the applicant, if any, and the person who filed the intervention of its decision in respect of the intervention.

• (4) An intervenor, on being advised by the Board of the name and mailing address of any other intervenor, shall serve a copy of the written intervention and any supplement thereto on every other intervenor.

• (5) A party may, within 15 days after the date of service of a written intervention or within 15 days after the date of service of any supplement thereto that is submitted in accordance with subsection (2), whichever is the later, serve an objection to the intervention on the person who has filed the intervention and shall file with the Board and serve on all other parties a copy of the objection.

Objections Under Part VI of Act

• 29 (1) Notwithstanding section 28 and subject to subsection (2), a purchaser of gas in Canada who objects to the issuance of a licence for the exportation of gas on the grounds that the purchaser has not had an opportunity to obtain gas under contract on terms and conditions, including price, similar to those of the proposed export, may file a written objection with the Board and shall thereby acquire intervenor status.

• (2) A purchaser of gas in Canada who files an objection under subsection (1) shall serve a copy of the objection on the applicant for the licence on the same day.

Letters of Comment

• 30 (1) Where a hearing order has been issued pursuant to section 23, any interested person who does not wish to intervene in the proceeding but who wishes to make comments to the Board regarding the proceeding shall file with the Board and serve on the applicant, if any, on or before the date set out in the order, a letter of comment that

  • (a) comments on the application or the subject-matter of the proceeding;

  • (b) describes the nature of the person’s interest in the proceeding; and

  • (c) provides any relevant information that the person considers will explain or support the person’s comments.

• (2) The Board shall provide all parties with a copy of any letter filed pursuant to subsection (1).

• (3) A party may, within 15 days after receipt of a letter filed pursuant to subsection (1), serve a reply on the person who has filed the letter and shall file with the Board and serve on all other parties a copy of the reply.

• (4) A person who files a letter pursuant to subsection (1)

  • (a) does not thereby acquire status as an intervenor;

  • (b) loses intervenor status if that person is an intervenor; and

  • (c) subject to subsection (3), is not entitled to any further notice in the proceeding.

Service on Intervenors

31 Unless the Board otherwise directs, an applicant who is notified that an intervention has been accepted by the Board in accordance with subsection 28(3) shall, within such time limit as the Board may fix, serve on the intervenor

• (a) a copy of the application;

• (b) any information, particulars or documents relevant to the application that have been filed with the Board;

• (c) at the request of the intervenor, a copy of any information that, pursuant to paragraph 16(1)(a), was not filed with the application; and

• (d) any hearing order issued by the Board, in the official language as appropriate or as requested.

Information Requests

• 32 (1) A party may direct an information request, within such time limit as the Board may fix,

  • (a) to any other party who has filed written evidence, in relation to any matter that is raised in that other party’s written evidence; and

  • (b) with leave of the Board or consent of the party to whom the information request is directed,

    • (i) to any other party who has filed written evidence, in relation to any matter that is in issue in the proceeding but that is not raised in that other party’s written evidence, and

    • (ii) to any other party who has not filed written evidence.

• (2) A party seeking leave under paragraph (1)(b) shall, within any time limit fixed by the Board pursuant to subsection (1), file with the Board and serve on the party to whom the information request is directed, the proposed information request and the justification therefor.

• (3) The Board shall not grant leave pursuant to paragraph (1)(b) unless the party to whom the information request is directed has been given an opportunity to comment on the proposed information request.

• (4) Where the Board has fixed a time limit pursuant to subsection (1), a party shall not, after the time limit expires, direct an information request to another party unless the Board grants leave to direct the request or the other party consents thereto.

• 33 (1) An information request shall be in writing, addressed to the applicable party and numbered consecutively in respect of each information request, including prior information requests.

• (2) Within any time limit fixed by the Board pursuant to section 32, every information request made pursuant to that section shall be served on the party to whom it is directed and a copy of the request shall be filed with the Board and served on all other parties.

• 34 (1) Subject to subsection (2), a party served with an information request pursuant to subsection 33(2) shall, within any time limit fixed by the Board,

  • (a) provide a full and adequate response in writing to each information request, on separate pages for each question where practicable; and

  • (b) file with the Board and serve on all other parties a copy of the response provided.

• (2) A party who does not provide a response as required by paragraph (1)(a) shall, within any time limit fixed by the Board pursuant to subsection (1), file with the Board and serve on all other parties a statement

  • (a) where the party objects to the filing of the information requested, setting out the objection and the grounds therefor; or

  • (b) where the party contends that the information necessary to provide a response is not available, setting out the reasons for the unavailability of the information, accompanied by any alternative available information that the party considers would be of assistance to the party directing the information request.

• (3) Where the Board determines that the grounds for the objection referred to in paragraph (2)(a) are not sufficient, the Board shall so inform the party and the party shall comply with subsection (1).

Notice of Motion

• 35 (1) Any matter that arises in the course of a proceeding and that requires a decision or order of the Board shall be brought before the Board by notice of motion.

• (2) A notice of motion shall

  • (a) be in writing;

  • (b) be signed by the person making the motion or the person’s authorized representative;

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

  • (d) contain a concise statement of the facts, the decision or order sought and the grounds therefor.

• (3) A person making a motion shall file the notice of motion with the Board and serve a copy on all parties.

• (4) A party who wishes to answer a notice of motion shall, within 10 days after receipt of the notice of motion, file a written answer with the Board and serve a copy on the person making the motion and on all other parties.

• (5) A person making a motion may, within five days after being served with an answer thereto, file a written reply with the Board and serve a copy on all parties.

• (6) Notwithstanding subsections (2) to (5), a notice of motion may, during an oral hearing, be given orally and, where it is so given, it shall be disposed of in accordance with such procedure as the Board directs.

• (7) Notwithstanding anything in Part III, an application to review a decision or order of a procedural nature made in the course of a proceeding, other than a decision to adjourn the proceeding for a period in excess of 60 days or for an unspecified period, may be made by a notice of motion.

Evidence at an Oral Hearing

• 36 (1) A party who intends to present evidence at an oral hearing shall, within such time limit as the Board may fix, file with the Board and serve on all other parties written evidence containing

  • (a) the position of the party on the issues in the hearing; and

  • (b) particulars regarding the name, title, position and other credentials of each witness who will address evidence on behalf of the party and the issues that the witness will address at the hearing.

• (2) Each witness referred to in paragraph (1)(b) shall confirm orally at the hearing or, with leave of the Board, by affidavit, that the written evidence or part thereof that the witness will address at the hearing was prepared by the witness or under the direction and control of the witness and is accurate to the best of the knowledge and belief of the witness.

• (3) For greater certainty, all written evidence referred to in subsection (1) must be confirmed pursuant to subsection (2).

• (4) Written evidence shall be

  • (a) in question and answer form, each line of which shall be consecutively numbered; or

  • (b) in narrative form, each paragraph of which shall be consecutively numbered.

• (5) A party may be cross-examined on any response filed by the party in respect of an information request and on any information filed by the party in the course of the proceeding.

• (6) Subject to subsection (7), witnesses at an oral hearing shall be examined orally on oath or solemn affirmation.

• (7) The Board may, at any time in a proceeding, order that

  • (a) evidence of certain facts shall be given by affidavit;

  • (b) the affidavit of any witness shall be read at an oral hearing on such conditions as are necessary for the fair conduct of the hearing; and

  • (c) any witness shall be examined before a commissioner of oaths or other person who is authorized to administer oaths and who is appointed by the Board for that purpose.

• (8) The following information is considered to constitute the record of the applicant:

  • (a) the information contained in the application;

  • (b) the information identified by a statement referred to in paragraph 16(1)(a);

  • (c) any response by the applicant to an information request;

  • (d) any additional information provided by the applicant as required under section 18; and

  • (e) any written evidence filed by the applicant pursuant to subsection (1).

• (9) The applicant shall not, except with leave of the Board, file any information in addition to that listed in subsection (8).

Evidence at a Written Hearing

• 37 (1) In the case of a written hearing, the Board may dispose of the application on the basis of the documentation before it or may require additional information pursuant to section 18.

• (2) The additional information provided by the applicant shall be filed with the Board and served on all other parties.

• (3) Where the Board provides parties the opportunity of filing written evidence, the written evidence shall contain the issues that the parties wish the Board to address and shall be provided

  • (a) in question and answer form, each line of which shall be consecutively numbered; or

  • (b) in narrative form, each paragraph of which shall be consecutively numbered.

• (4) All written evidence filed with the Board shall be supported by an affidavit of the person who prepared the evidence or under whose direction or control it was prepared attesting that the evidence is accurate to the best of that person’s knowledge and belief.

• (5) The following information is considered to constitute the record of the applicant:

  • (a) the information contained in the application;

  • (b) the information identified by a statement referred to in paragraph 16(1)(a);

  • (c) any response by the applicant to an information request;

  • (d) any additional information provided by the applicant as required under section 18; and

  • (e) any written evidence filed by the applicant pursuant to subsection (3).

• (6) The applicant shall not, except with leave of the Board, file any information in addition to that listed in subsection (5).

Communication with Witnesses

38 Except during examination or cross-examination, there shall be no communication between any counsel and a witness under examination or cross-examination from the time that the witness has been sworn or affirmed until that witness has been excused, unless it is necessary to comply with undertakings, deal with procedural matters, prepare for cross-examination of parties adverse in interest, prepare the witness for appearance on a subsequent panel, or for other reasons with leave of the Board or with consent of Board counsel and all parties present at the hearing or their authorized representatives.

Opening Statements

39 Unless leave of the Board is granted, any opening statement that a witness intends to make shall, at least one clear business day before the attendance of the witness, be filed with the Board by a party on behalf of its witness and served on all other parties.

Subpoenas

• 40 (1) At the request of a party, the Board may issue a subpoena, which shall be signed by the Secretary and sealed by the Secretary with the Board’s seal.

• (2) A subpoena issued pursuant to subsection (1) shall be issued in the form set out in the schedule and may set out the names of any number of persons required to appear before the Board.

• (3) No person served with a subpoena is required to appear before the Board pursuant to the subpoena unless the person has been paid or tendered conduct money in an amount sufficient to cover the person’s reasonable fees and travelling expenses.

• (4) A subpoena shall be served personally on the person to whom it is directed at least two clear business days before the date on which the person is to appear.

Simultaneous Interpretation

41 Where both official languages are intended to be used at an oral hearing, the Board shall make simultaneous interpretation available to the parties at the hearing.

Argument

42 The Board may order parties to submit written argument in addition to or in lieu of oral argument.

PART IIIApplications for Review or Rehearing

General

43 In this Part,

application for review

application for review includes an application to vary or rescind any decision or order of the Board; (demande de révision)

original proceeding

original proceeding means

• (a) in respect of an application for a review pursuant to subsection 21(1) of the Act, the proceeding that gave rise to the decision or order in respect of which the review is sought,

• (b) in respect of an application for a rehearing pursuant to subsection 21(1) of the Act, the proceeding in respect of which the rehearing is sought, or

• (c) in respect of an application for leave to appeal to the Federal Court of Appeal pursuant to subsection 22(1) of the Act, the proceeding that gave rise to the decision or order in respect of which leave to appeal is sought. (procédure initiale)

Applications

• 44 (1) Any application for review or rehearing pursuant to subsection 21(1) of the Act shall be in writing, signed by the applicant or the applicant’s authorized representative, filed with the Board and served on all parties to the original proceeding.

• (2) An application for review or rehearing shall contain

  • (a) a concise statement of the facts;

  • (b) the grounds that the applicant considers sufficient, in the case of an application for review, to raise a doubt as to the correctness of the decision or order or, in the case of an application for rehearing, to establish the requirement for a rehearing, including

    • (i) any error of law or of jurisdiction,

    • (ii) changed circumstances or new facts that have arisen since the close of the original proceeding, or

    • (iii) facts that were not placed in evidence in the original proceeding and that were then not discoverable by reasonable diligence;

  • (c) the nature of the prejudice or damage that has resulted or will result from the decision or order; and

  • (d) the nature of the relief sought.

• (3) For the purposes of subsection (2), unless otherwise determined by the Board, an original proceeding is considered to be closed

  • (a) in the case of an oral hearing, at the end of the final argument; and

  • (b) in the case of a written hearing, on the close of business for the Board on the later of

    • (i) the last date for filing of written evidence, and

    • (ii) the last date for filing argument.

Disposition

• 45 (1) Upon receipt of an application for review or rehearing, the Board may, subject to subsection (2),

  • (a) dismiss the application if the Board is of the view that the applicant has not

    • (i) in the case of an application for review, raised a doubt as to the correctness of the Board’s decision or order, or

    • (ii) in the case of an application for rehearing, established that a rehearing is required; or

  • (b) issue an order granting a review or rehearing and issue such other order as the Board considers to be just and reasonable.

• (2) Before making a determination under subsection (1) the Board may

  • (a) issue directions on procedure giving interested persons the opportunity to make submissions and indicating the manner of making the submissions

    • (i) in the case of an application for review, on whether or not a doubt has been raised as to the correctness of the Board’s decision or order or, in the case of an application for rehearing, on whether or not a rehearing is required,

    • (ii) on the merits of confirming, amending or overturning the Board’s decision or order or rehearing the application, and

    • (iii) on the merits of granting the decision or order sought; or

  • (b) determine that a review or rehearing is required and issue directions on procedure giving interested persons the opportunity to make submissions and indicating the manner of making the submissions

    • (i) in the case of an application for review, on the merits of confirming, amending or overturning the Board’s decision or order or, in the case of an application for rehearing, on the merits of rehearing the original proceeding, and

    • (ii) on the merits of granting the decision or order sought.

46 Directions on procedure issued pursuant to subsection 45(2) shall provide that

• (a) the applicant for a review or rehearing shall serve a copy of the directions on procedure on all parties to the original proceeding;

• (b) an interested person who files a submission with the Board shall serve a copy on the applicant for a review or rehearing and on all parties to the original proceeding;

• (c) the applicant for a review or rehearing shall be given an opportunity to reply to all submissions; and

• (d) the applicant for a review or rehearing shall file with the Board a copy of any reply and shall serve, on the same day, a copy of such reply on all parties to the original proceeding and on any interested person who has filed a submission.

Application for Stay

• 47 (1) Any party may apply to the Board for an order, in the case of a review, staying the decision or order in respect of which the review is sought and, in the case of a rehearing, staying the original proceeding, pending the outcome of the review or rehearing.

• (2) Where an application for leave to appeal to the Federal Court of Appeal pursuant to subsection 22(1) of the Act has been made, any party may apply to the Board for an order staying the decision or order in respect of which leave to appeal is sought, pending the outcome of the appeal.

• (3) An application for a stay shall be in writing, signed by the applicant or the applicant’s authorized representative, filed with the Board and served on all parties to the original proceeding.

• (4) Upon receipt of an application for a stay, the Board may

  • (a) make an order staying the order, decision or original proceeding;

  • (b) dismiss the application for a stay; or

  • (c) issue directions on procedure inviting submissions from interested persons on whether or not a stay should be granted.

• (5) Directions on procedure issued pursuant to paragraph (4)(c) shall provide that

  • (a) the applicant for a stay shall serve a copy of the directions on procedure on all parties to the original proceeding;

  • (b) an interested person filing a submission with the Board shall serve a copy of the submission on the applicant for a stay and all parties to the original proceeding;

  • (c) the applicant for a stay be given an opportunity to reply to any submissions; and

  • (d) the applicant for a stay shall file a copy of any reply with the Board and serve it on all parties to the original proceeding.

PART IVPlan, Profile and Book of Reference of a Pipeline or an International or Interprovincial Power Line

General

48 Sections 18 and 22 do not apply to proceedings under this Part.

49 For the purposes of sections 50 to 52, applicant means a company that prepares and submits, under section 33 of the Act, a plan, profile and book of reference of a pipeline or an international or interprovincial power line to the Board.

Notice

• 50 (1) Before any notice in respect of a plan, profile and book of reference of a pipeline or an international or interprovincial power line is served or published by an applicant under section 34 of the Act, the applicant shall

  • (a) submit to the Board for approval as to form a sample notice for service and a sample notice for publication, both of which shall include a sample description of the proposed detailed route of the pipeline or the international or interprovincial power line that is to be included in each notice; or

  • (b) identify in writing, for the approval of the Board, one or more forms of notices previously approved by the Board that the applicant proposes to serve or publish in relation to the plan, profile and book of reference.

• (2) The submission required under paragraph (1)(a) shall include

  • (a) a copy of any map that the applicant proposes to publish; and

  • (b) a list of the titles and the number of issues of the publications in which the applicant proposes to publish the notice.

• (3) Any notice served or published under section 34 of the Act shall not depart in any material respect from the notice approved by the Board under subsection (1).

51 The Board shall, upon receipt of a written statement filed under subsection 34(3) or (4) of the Act, serve the applicant with a copy of the statement.

52 Where an applicant completes the service and publication of any notice under section 34 of the Act, the applicant shall forthwith notify the Board in writing of the dates of the last such service and publication.

Costs

53 In order for the Board to fix costs pursuant to section 39 of the Act, a person who has made representations to the Board at a hearing held pursuant to subsection 35(3) of the Act shall prepare an itemized statement of the actual costs reasonably incurred by the person for the purposes of that hearing and shall send, on the same day by registered mail, a copy of the statement to the Board and to the company whose pipeline or international or interprovincial power line route is the subject of the hearing.

• 54 (1) Where a company receives a copy of a statement of costs in accordance with section 53 and does not pay the costs in full within 60 days after the date of mailing of the statement, the person who sent the statement may request the Board to fix the amount to be paid by the company.

• (2) A company that receives a copy of a statement of costs referred to in section 53 may request the Board to fix the amount to be paid by the company.

• (3) Any request referred to in this section shall be in writing and the person or company making the request shall send, on the same day by registered mail, a copy of the request to the Board and to the company or person, as the case may be.

• (4) The Board may appoint a member of its staff to mediate between the company and the person involved in a request referred to in this section with a view to obtaining an agreement as to the amount of costs to be paid by the company.

• (5) Where no agreement is reached within 20 days after the appointment of a mediator, the Board shall give notice to the person and the company, and commence proceedings to fix the amount of costs to be paid.

PART VRight of Entry to Lands

Applications

• 55 (1) To apply for a right of entry order under section 104 of the Act, a company shall, after serving the owner of the lands with the notice described in subsection 104(2) of the Act, file an application with the Board not less than 30 days and not more than 60 days after the date of service of the notice on the owner.

• (2) The application must be served on the owner of the lands on the same day that the application is filed with the Board.

• (3) The application must contain

  • (a) a copy of the notice described in subsection 104(2) of the Act;

  • (b) evidence that the notice has been served on the owner of the lands

    • (i) not less than 30 days and not more than 60 days prior to filing the application with the Board, and

    • (ii) in accordance with subsection 8(8) or in any manner ordered by the Board under the National Energy Board Substituted Service Regulations;

  • (c) a schedule that is proposed to be made part of the order sought and that contains, in a form suitable for depositing, registering, recording or filing against lands in the land registry or land titles office in which land transactions affecting those lands may be deposited, registered, recorded or filed, a description of

    • (i) the lands in respect of which the order is sought,

    • (ii) the rights, titles or interests applied for in respect of the lands, and

    • (iii) any rights, obligations, restrictions or terms and conditions that are proposed to attach

      • (A) to the rights, titles or interests applied for in respect of the lands,

      • (B) to any remaining interest or interests, or

      • (C) to any adjacent lands of the owner;

  • (d) a current abstract of title to the lands, a certified copy of the certificate of title to the lands or a certified statement of rights registered in the land registers for the lands;

  • (e) a copy of section 56; and

  • (f) evidence that the application, including the information set out in paragraphs (a) to (e), has been served on the owner of the lands.

Written Objection

• 56 (1) An owner of lands for which a right of entry order is sought who wishes to object to the application shall file the objection with the Board no later than ten days after the date that the application is served on the owner by the company.

• (2) Where an owner of lands files an objection in accordance with subsection (1), the owner shall, on the same day that the objection is filed with the Board, serve the objection on the company at the address shown in the notice served on the owner by the company.

• (3) A company that receives an objection under subsection (2) shall file with the Board a reply to the objection, or a statement that it does not wish to respond to the objection, within seven days after the date that the objection is served on the company by the owner of the lands.

• (4) Where a company files a reply to an objection, the company shall serve the reply on the owner of the lands on the same day that the reply is filed with the Board.