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

Regulations are current to 2024-03-06

PART IIPublic Hearings (continued)

Evidence at a Written Hearing

  •  (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).

  • SOR/99-380, s. 5(F)

Communication with Witnesses

 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

 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

  •  (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

 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

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

PART IIIApplications for Review or Rehearing

[
  • SOR/99-380, s. 6(F)
]

General

 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)

  • SOR/99-380, s. 6(F)

Applications

  •  (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.

  • SOR/99-380, s. 6(F)

Disposition

  •  (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.

  • SOR/99-380, s. 6(F)

 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.

  • SOR/99-380, s. 6(F)

Application for Stay

  •  (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.

  • SOR/99-380, s. 6(F)

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

General

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

 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

  •  (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).

 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.

 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

 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.

  • SOR/98-355, s. 1(F)
  •  (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

  •  (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

    • (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.

  • SOR/2001-30, s. 1
 

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