Environmental Protection Review Canada
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Draft Rules of Procedure

Note: These draft rules have been revised as of December 1, 2017 to address Environmental Protection Review Canada’s  ("EPRC") new jurisdiction regarding reviews of Administrative Monetary Penalties. They may be adjusted as EPRC gains experience in their use.


General

[1] Definitions

The following definitions apply in these rules:

Administrative Monetary Penalty
means a notice of violation that is subject to a right to request a review under section 15 of the Environmental Violations Administrative Monetary Penalties Act.

Applicant
means any person subject to an Administrative Monetary Penalty or  Order who applies to the Chief Review Officer for a review.

Chief Review Officer
means the Chief Review Officer appointed under section 244(1) of the Canadian Environmental Protection Act, 1999.

Intervenor
means any person who the presiding Review Officer permits to participate in a hearing according to Rule 18.

Minister
means the Minister of Environment and Climate Change.

Order
means an order that is subject to a right to request a review under section 37.09(1) of the Antarctic Environmental Protection Act, section 11.94(1) of the Canada Wildlife Act, section 256(1) of the Canadian Environmental Protection Act, 1999, section 27(1) of the International River Improvements Act, or section 11.27(1) of the Migratory Birds Convention Act, 1994.

Party
means
  1. The Applicant; and
  2. The Minister.

Review Officer
means a Review Officer appointed under section 243 of the Canadian Environmental Protection Act, 1999.

[2] Discretion

At any time in a review, where required by considerations of a fair and expeditious hearing, the Review Officer may dispense with or vary these Rules.

Application and Preparation for a Hearing

[3] Request for Review

[3.1] A request for review must be directed to the Chief Review Officer within 30 days after the day on which the notice of an Administrative Monetary Penalty is served on the Applicant, within 30 days after the Applicant's receipt of a copy of a written Order or within 30 days after an oral Order is given. The request must be in writing, signed by the Applicant or the Applicant's representative, and contain the following information:

  1. the name and address for service of Applicant;
  2. a copy of the Administrative Monetary Penalty or Order that is the subject of the request;
  3. the reasons for the request for the review;
  4. in the case of an Order, whether the Applicant will be applying to suspend the operation of the Order, pursuant to subsection 258(2) of the Canadian Environmental Protection Act, 1999.

[3.2] At the same time as a request is made to the Chief Review Officer, the Applicant must serve a copy of the request on the Minister; this service must be made to the Regional Office of Environment and Climate Change Canada in the Region where the Administrative Monetary Penalty or Order was issued or where the Applicant is located.

[3.3] A request for review must be in both written format and, where possible, electronic format. Other filings made in any proceeding may be in written or electronic format.

[3.4] Upon receiving service of the request for review, the Minister must, within five business days, disclose to the Applicant the relevant portion of the Minister's file in the matter in a numbered format with a list of contents. The disclosed material must also be filed with Environmental Protection Review Canada by the Minister at the same time.

[4] Pre-Hearing Conference

The Review Officer may direct the Parties to attend one or more pre-hearing conferences for the purpose of making representations to the Review Officer or receiving direction from the Review Officer with respect to any of the following matters:

  1. The clarification and simplification of issues;
  2. The admission of certain facts or the verification of those facts by affidavit, or the use by either Party of documents of a public nature;
  3. The procedure to be followed in the review;
  4. The exchange between Parties of written submissions;
  5. The question of whether any written submission, document or testimony presented to or to be presented to the Review Officer contains confidential information;
  6. The question of the confidential information, if any, to which an expert appearing on behalf of a Party may be given access;
  7. Limitation on the number of witnesses, on the extent of presentation of evidence, rebuttal evidence, or cross-examination;
  8. The use of electronic communication, including teleconferences and videoconferences, for the hearing;
  9. The schedule for the exchange between Parties of experts' reports, if any;
  10. Any other matter relevant to the hearing.

[5] Mediation

[5.1] Prior to the hearing, Environmental Protection Review Canada may schedule a mediation meeting in which the Parties participate with a view to reaching a settlement of the issues or reducing, clarifying or simplifying the issues in dispute. Parties should come to the mediation fully prepared for a useful discussion on all the issues involved in the review and be prepared to negotiate and make decisions.

[5.2] The Chief Review Officer will appoint a mediator, who may be a Review Officer.

[5.3] On the consent of the Parties, a Review Officer who conducted the mediation may preside over the review hearing.

[5.4] If no full settlement is reached on the issues, the review process will continue. No reference to information disclosed during mediation shall be made, except with the consent of the Parties.

[5.5] The mediator may exclude every person but the Parties from the mediation.

[5.6] All documents submitted and all statements made at the mediation are confidential and on a without prejudice basis.

[5.7] Any documents filed in the mediation will not be accessible to the public and will be returned after the mediation to the Party who filed the documents. These documents will not be considered to be part of the record of the review. Where mediation leads to a settlement, relevant documents that underlie the terms of the settlement may be placed on the record of the review, subject to provisions regarding confidentiality.

[6] Directions on Procedure

The Review Officer may issue directions to the Parties concerning the conduct of the review as provided in Rule 2. These directions will prevail over any provisions in the Rules that are inconsistent with the directions.

[7] Timing

Where under these Rules, the Review Officer fixes a time limit and reference is made to a number of days for the doing of a thing, it means business days.

[8] Combining Proceedings

If two or more requests for review involve the same or similar questions of fact, law or policy, the Chief Review Officer may, on notice to the Parties and having heard their submissions on the matter, arrange to have the reviews heard by one Review Officer at the same time, or may adjourn one review until the final disposition of the others.

[9] Form of Hearing

The Review Officer may conduct the review, including the pre-hearing conference, by means of written communication, telecommunication, or viva voce testimony, or any combination of the above. The Review Officer may, on the consent of the Parties, dispense with oral representations.

[10] Language and Accommodation

[10.1] Parties and their representatives are entitled to communicate and receive service in both Official Languages. The Parties must notify Environmental Protection Review Canada of their language preferences at the time of making the application.

[10.2] If a Party requires an interpreter in a language other than English or French or requires signing, the Party must notify Environmental Protection Review Canada and the Party must provide an interpreter at its own expense.

[10.3] If a witness requires an interpreter in a language other than English or French or requires signing, the Party calling the witness must notify Environmental Protection Review Canada and provide an interpreter at the Party's own expense.

[10.4] The interpreter must be competent and independent and be able to attest that he or she will interpret accurately.

[10.5] Parties and their representatives must notify Environmental Protection Review Canada as soon as possible of any special needs of the Parties or their witnesses.

[11] Representation of Parties

Parties and Intervenors may appear in person or be represented by counsel or an agent.

[12] Intervenors

[12.1] Any person may, with the leave of the Review Officer, participate in all or part of a review on such conditions as the Review Officer considers appropriate, taking full account of the need for timely decision-making.

[12.2] When deciding whether to allow a person to participate under this Rule, the Review Officer may consider:

  1. the nature of the review;
  2. the issues;
  3. whether the person has a genuine interest in the issues;
  4. the likelihood of the person's being able to make a useful and different contribution to the Review Officer's understanding of the issues;
  5. any delay or prejudice to the Parties; and
  6. any other matters the Review Officer considers relevant.

[12.3] A Review Officer may direct, as a condition of participation, that persons seeking the status of Intervenor cooperate in providing evidence to the Review Officer when the interests being represented or the contributions to the Review Officer's understanding are likely to be similar.

[12.4] When a Review Officer determines that a person will be given the status of Intervenor, he or she may direct the Parties to provide the Intervenor with any information or evidence relevant to the Intervenor's interests that has been provided or will be provided to the Review Officer in the course of the review, subject to any direction made under Rule 23 respecting confidentiality.

[12.5] Subject to any direction made by the Review Officer, an Intervenor may:

  1. Present his or her relevant testimony at a pre-arranged time;
  2. Provide Environmental Protection Review Canada and the Parties with a written statement as a supplement to oral testimony;
  3. Be questioned by the Review Officer and the Parties.

[12.6] An Intervenor may make written submissions to Environmental Protection Review Canada at the end of the proceeding.

[12.7] Subject to any direction to the contrary made by the Review Officer, an Intervenor may not:

  1. Call witnesses;
  2. Cross-examine witnesses;
  3. Bring motions.

[13] Notice and Distribution of Documents

[13.1] Unless the Review Officer directs otherwise, he or she must give written notice of a hearing to the Parties and may give notice to other persons as the Review Officer considers necessary. The notice must include the time, place and purpose of the hearing; notice to the Parties must include a statement that if a Party does not attend the hearing, the Review Officer may proceed in the Party's absence.

[13.2] All evidence filed with the Review Officer must be served on the other Party at the same time. The Review Officer may require a Party to serve evidence on an Intervenor.

[13.3] A copy of all material filed by the Applicant, the Minister, and any Intervenor will be kept at the offices of Environmental Protection Review Canada and will be available for inspection on terms to be set by the presiding Review Officer.

[14] Service

[14.1] Unless otherwise stated, documents may be served by hand delivery, mail, courier, facsimile, email or other means of written or electronic communication.

[14.2] Where a person serves a document by electronic means, the person must provide an original hard copy of the document to the person served within two days, or such longer period of time as the Review Officer may order, after the document is served, unless the recipient waives this provision.

[14.3] The date of service of a document will be determined in accordance with the relevant rules of procedure.

[14.4] The person serving the document must provide proof of service to Environmental Protection Review Canada, in accordance with the terms of the relevant rules of procedure.

[15] Additional Information and Summons

[15.1] A Review Officer, at any time in the review, may require a Party or any other person to provide such information, documents, or other things as the Review Officer determines to be necessary in order to obtain a full and satisfactory understanding of the subject matter of the review.

[15.2] A Review Officer, at the request of either Party or an Intervenor or on his or her own initiative, may issue a summons in the form set by Environmental Protection Review Canada.

[16] Expert Evidence

[16.1] A Party who intends to call an expert as a witness at a hearing must file with Environmental Protection Review Canada and serve on the other Party or on an Intervenor the expert's report, in accordance with any procedures determined at the pre-hearing conference.

[16.2] In the event that a Party is unable to comply with the rules set by the Review Officer at the pre-hearing conference for the delivery of an expert's report, the Party must apply to the Review Officer for direction as to when, and under what terms, the expert's report may be filed.

Hearings

[17] Order of Presentation

Unless the Review Officer directs otherwise, the evidence at the hearing will be presented in the following order:

  1. the Minister, including any expert(s) called by the Minister;
  2. the Applicant for a review, including any expert(s) called by the Applicant;
  3. the Intervenors, if any;
  4. any expert(s) called by the Review Officer;
  5. the Applicant's response, if any, to the expert(s) called by an Intervenor or the presiding Review Officer;
  6. the Minister, in reply;
  7. the Applicant, in surreply.

[18] Adjournments

[18.1] A hearing may be adjourned from time to time by a Review Officer on his or her own motion or where it is shown to the satisfaction of the Review Officer that the adjournment is required to permit an adequate hearing to be held.

[18.2] In granting an adjournment, the Review Officer may impose such conditions as he or she considers appropriate.

[19] Site Visit

At any time during the review, the Review Officer may schedule a site visit, at the request of the Parties or an Intervenor or on his or her own initiative. The Review Officer will set the terms of reference for the site visit in advance, including the scope and objectives of the visit, and will notify the Parties and Intervenors, if any, in writing of the site visit and the terms of reference for it.

[20] Written Arguments

A Review Officer may, whenever he or she considers it advisable to do so, order written arguments to be submitted by a Party to the proceeding in addition to or in lieu of oral argument.

[21] Communications with the Presiding Review Officer

[21.1] Written communications with the presiding Review Officer must be copied to the Parties, or their representatives, and to Environmental Protection Review Canada.

[21.2] Oral communication with the presiding Review Officer about a current review must occur only with the consent of all Parties.

[21.3] Where a Party or Intervenor has a representative, all communication between Environmental Protection Review Canada or the presiding Review Officer and the Party or Intervenor must be through the representative.

[22] Communication with Witnesses

There must be no communication between any counsel or agent and a witness under cross-examination by counsel for another Party from the time the witness has completed his examination-in-chief until that witness is excused, unless it is necessary to comply with undertakings, deal with procedural matters, prepare for cross-examination of a person adverse in interest, or for any other reasons with leave of the presiding Review Officer.

[23] Confidentiality

[23.1] Where a document is filed with the presiding Review Officer, the Review Officer will make the document available for inspection unless a Party asserts a claim of confidentiality at the time of the filing.

[23.2] Any claim for confidentiality made in connection with a document filed with the presiding Review Officer or requested by the presiding Review Officer must be accompanied by reasons for the claim of confidentiality and, where it is alleged that specific direct harm would occur from a breach of confidentiality, sufficient details regarding the nature and extent of harm must be provided.

[23.3] A claim for confidentiality will be placed on the public record of the review and a copy of the claim must be provided to the Parties and Intervenors, if any, by the person claiming confidentiality.

[23.4] The Party claiming confidentiality must provide the presiding Review Officer with a non-confidential summary or a non-confidential edited version of the information, which will be placed on the public record.

[23.5] A Party to a proceeding or an Intervenor seeking the public disclosure of information for which confidentiality has been claimed may request the presiding Review Officer to order disclosure. The person seeking disclosure must set out reasons for the request, including the relevance of the document to the review and public interest considerations, if any.

[23.6] In determining whether information provided to the presiding Review Officer is of a confidential nature, the presiding Review Officer will take into account the provisions of the Privacy Act and the Access to Information Act.

[23.7] Where a Party has asserted a claim to confidentiality, the Review Officer may disclose or require the disclosure where he or she determines, after considering the representations from the Party and other interested persons, that disclosure, in full or in part, is in the public interest or is required by fairness and natural justice.

[24] Disclosure to Counsel or an Expert

[24.1] Counsel who wishes access to information that the presiding Review Officer has determined to be confidential must provide the Review Officer with an undertaking and acknowledgment in the form set by Environmental Protection Review Canada regarding the use, disclosure, reproduction, protection and storage of the confidential information, as well as the disposal of confidential information at the close of the hearing or in the event of the change of counsel.

[24.2] A person who is recognized by the Review Officer as an expert, who is acting under the direction of counsel to whom confidential information has been disclosed and who wishes access to some or all of the confidential information, must provide the Review Officer with an undertaking and acknowledgement in the form set by Environmental Protection Review Canada regarding the use, disclosure, reproduction, protection and storage of the confidential information, and regarding that expert's disposal of the confidential information at the close of the hearing or in the event of a change of expert.

[24.3] The person requesting that its information be kept confidential must be given notice of the presiding Review Officer's intention to disclose information to counsel or to an expert pursuant to an undertaking and acknowledgement and may request the Review Officer to refrain from disclosure.

[25] In Camera Proceedings

[25.1] The hearings conducted by a Review Officer will be public subject to the following provisions regarding confidentiality and in camera proceedings:

[25.2] The presiding Review Officer may hold all or any part of a hearing in camera,

  1. on his or her own initiative or on the request of a Party or Intervenor, if any, for the purposes of receiving confidential information; or
  2. on the request of a Party who establishes that the circumstances justify an in camera hearing.

[25.3] Arguments on whether any part of a hearing should be held in camera may be heard in camera.

[26] Motion to Stay Order

A person subject to an Order may apply for a stay of the Order pending the decision of the Review Officer.

[27] Motions

[27.1] A motion, including a motion to stay an Order, must be made by a written notice of motion, unless the Review Officer in his or her discretion otherwise permits.

[27.2] Every notice of motion must:

  1. state the precise relief sought;
  2. state the grounds to be argued, including a reference to any statutory provisions or rule to be relied on;
  3. list the documentary evidence to be used at the hearing of the motion.

[27.3] Unless the Review Officer in his or her discretion otherwise permits, a person making a motion must,

  1. serve on the other Party a notice of the motion and all supporting material at least four (4) days before the motion is to be heard;
  2. file with Environmental Protection Review Canada the notice of motion and all supporting material with proof of service on the other Party at least three (3) days before the motion is to be heard;
  3. A Party responding to the motion must serve and file any materials intended to be relied on at least two (2) days before the motion is to be heard;
  4. Unless the Review Officer permits oral evidence, the evidence in motion hearings must be in the form of affidavits and transcripts of cross-examination of witnesses on their affidavits.

[27.4] The hearing of the motion will be held on a date fixed by the Review Officer, following the filing of all relevant material or will be held on the basis of the filed documents, at the discretion of the presiding Review Officer.

[28] Variance of Decision by Review Officer

Where, pursuant to section 264 of the Canadian Environmental Protection Act, 1999, the presiding Review Officer intends to review his or her decision regarding an Order, the Review Officer will give notice to the Parties of his or her intention to do so. In giving notice, the Review Officer will state the grounds on which he or she proposes to review the decision and give Parties an opportunity to make oral representations.

[29] Constitutional Questions

[29.1] Where a Party intends to raise a question about the constitutional validity or applicability of legislation or where a Party claims a remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms, a notice of a constitutional question must be served on the other Party and Environmental Protection Review Canada at least ten (10) days before the question is to be argued.

[29.2] At the same time that notice is provided pursuant to (1), notice to the Attorneys General of Canada and the Provinces must be provided in accordance with the applicable rules in their jurisdictions and copies provided to Environmental Protection Review Canada at least ten (10) days before the question is to be argued.