ARCHIVED — Rules Amending the Rules of Procedure for Boards of Review

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Vol. 145, No. 3 — February 2, 2011

Registration

SOR/2011-1 January 11, 2011

CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

Whereas, pursuant to subsection 332(1) (see footnote a) of the Canadian Environmental Protection Act, 1999 (see footnote b), the Minister of the Environment published in the Canada Gazette, Part I, on October 9, 2010, a copy of the proposed Rules Amending the Rules of Procedure for Boards of Review, substantially in the annexed form, and persons were given an opportunity to file comments with respect to the proposed Rules or to file a notice of objection requesting that a board of review be established and stating the reasons for the objection;

Therefore, the Minister of the Environment, pursuant to section 341 of the Canadian Environmental Protection Act, 1999 (see footnote c), hereby makes the annexed Rules Amending the Rules of Procedure for Boards of Review.

Ottawa, January 7, 2011

PETER KENT
Minister of the Environment

RULES AMENDING THE RULES OF PROCEDURE FOR BOARDS OF REVIEW

AMENDMENTS

1. Paragraph 6(f) of the French version of the Rules of Procedure for Boards of Review (see footnote 1) is replaced by the following:

f) des renseignements confidentiels que peuvent comporter les mémoires, les documents ou les témoignages;

2. Section 8 of the Rules is replaced by the following:

8. (1) The Board may require the Minister or a party to file a written submission with the Board containing

(a) a summary of the facts and other evidence that they intend to present; and

(b) the names of any witnesses that they intend to call during the hearing and a summary of the evidence to be presented by each of those witnesses.

(2) The Minister or the party shall file the written submission with the Board at least seven days before the hearing.

3. Subsection 9(2) of the French version of the Rules is replaced by the following:

(2) Au moins dix jours avant le début de l’audience, la partie qui a reçu signification du rapport et qui souhaite réfuter, au moyen de sa propre expertise, un point qui y est soulevé signifie au ministre et aux autres parties un rapport de son témoin expert et le dépose auprès de la commission.

4. Paragraph 10(2)(d) of the French version of the Rules is replaced by the following:

d) la probabilité que la personne puisse contribuer de façon utile et différente à la compréhension des questions en litige par la commission;

5. Section 13 of the Rules is replaced by the following:

13. Except if information or evidence is treated as confidential for any reason referred to in paragraphs 52(a), (b) or (c) of the Act or contains personal information, as defined in section 3 of the Privacy Act, hearings conducted by the Board shall be public and information provided to the Board for the purpose of an inquiry shall be placed on the public record.

6. Section 15 of the Rules and the heading before it are replaced by the following:

COSTS

15. (1) If awarding costs under section 338 of the Act, the Board shall consider whether any conduct or step taken during the proceedings was improper, vexatious or in bad faith.

(2) For greater certainty, failure to comply with these Rules or a direction of the Board constitutes improper conduct.

(3) Before awarding costs, the Board shall consider the seriousness of the misconduct.

16. The Board may direct that costs be paid to the Minister or a party or that costs be paid by a party or the Minister.

17. If the Board awards costs, it shall consider the following criteria in fixing the costs:

(a) the amount of additional work required as a result of the conduct or steps taken during the proceedings that were improper, vexatious or in bad faith;

(b) the costs incurred for the preparation of written submissions required or permitted by the Board and for the presence at the hearing of counsel that are necessary as a result of the conduct or steps taken during the proceedings that were improper, vexatious or in bad faith, with the exception of the costs of travel, accommodation and meals;

(c) the reasonableness of the amounts claimed in the bill of costs; and

(d) if the Board directs costs to be paid at the request of a person, any conduct of or steps taken by that person during the proceedings that were improper, vexatious or in bad faith.

18. (1) After the hearing, the Minister or a party may make a written application for costs and the application shall be accompanied by a bill of costs and receipts and set out

(a) the name of the person from whom costs are claimed;

(b) the reasons for the application; and

(c) the conduct or steps taken during the proceedings by the person from whom costs are claimed that were improper, vexatious or in bad faith.

(2) Within 10 days after the last day of the hearing, the application and the bill of costs with the receipts shall be served on the person from whom costs are claimed and filed with the Board.

(3) Within 10 days after service of the application, the person from whom costs are claimed who wishes to contest the application and the bill of costs shall serve a response on the person who filed the application and file the response with the Board.

COMING INTO FORCE

7. These Rules come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Issue and objectives

Pursuant to section 333 of the Canadian Environmental Protection Act, 1999 (the Act), mandatory and discretionary boards of review can be established, by either the Minister of the Environment alone or by the Minister of the Environment and the Minister of Health jointly, to inquire into specified matters in response to a notice of objection filed under the Act.

The Rules of Procedure for Boards of Review (the Rules) address issues such as quorum, prehearing conferences, witnesses, interveners, form and service of evidence, and the public nature of the inquiry, but do not contain provisions on the awarding of costs related to a proceeding before a board of review (“a board”). The Rules Amending the Rules of Procedures for Boards of Review (the Amendments), made under section 341 of the Act, modify the Rules to address the awarding of costs.

Section 313 of the Act authorizes a person who provides information to a board to submit with the information a request that it be treated as confidential. The Rules provide that information provided to a board in respect of an inquiry shall be placed on the public record except if the information or evidence is treated as confidential in accordance with sections 313 to 321 of the Act. The amendments to the Rules replace the reference to sections 313 to 321 of the Act with a reference to paragraphs 52(a), (b) or (c) which set out more appropriate criteria for treating information as confidential.

Further, the Amendments address inconsistencies in the English and French versions of the Rules identified by the Standing Joint Committee for the Scrutiny of Regulations (the Committee).

Description and rationale

Section 338 of the Act authorizes a board to direct, in accordance with the Rules, by whom and to whom any costs are to be paid and by whom they are to be taxed and allowed. The Rules did not contain any provisions that prescribe how costs can be awarded by a board.

In order to provide guidance to a board awarding costs under section 338 of the Act, the Amendments add subsections 15(1) to (3) to the Rules which specify that, if awarding costs, a board shall consider whether any conduct or step taken during the proceedings was improper, vexatious or taken in bad faith. Section 16 provides authority to a board to direct to whom cost must be paid and by whom.

The Amendments also set out the criteria a board must consider in fixing the amount of costs it awards. These include

  • the amount of additional work required as a result of improper, vexatious or bad faith conduct;
  • the costs incurred for the preparation of written submissions and for the presence at the hearing of legal counsel, excluding costs of travel, accommodation and meals;
  • the reasonableness of the amounts claimed; and
  • the conduct of the party requesting that costs be paid.

Finally, the Amendments establish the procedure for applying for costs, including the time period within which a written application for costs must be filed with the board and served on the person from whom costs are claimed and the manner in which the person from whom costs are claimed may contest the claim.

These provisions contribute to the purpose of deterring improper, vexatious and bad faith behaviour from parties to a board proceeding.

The Rules provide that board proceedings are public in nature except if information or evidence is treated as confidential in accordance with sections 313 to 321 of the Act. While section 313 of the Act authorizes a person who provides information to a board to submit with it a request that the information be treated as confidential, sections 314 to 321 of the Act do not expressly apply to a board and set out criteria for disclosing information that is not tailored to the unique circumstances of a board of review. For this reason, the Amendments remove the reference to sections 313–321 of the Act and instead require a board’s inquiry to be public in nature, unless information and evidence is treated as confidential as per the criteria under paragraph 52(a), (b) or (c) of the Act or the information contains personal information as defined under the Privacy Act.

The Amendments also make the following technical changes in response to recommendations of the Committee to improve clarity and align the English and French versions of the text of the Rules:

  • Add the wording “les documents” to the French version of paragraph 6(f) to align it with the English version of the paragraph.
  • Modify subsection 9(2) by removing the wording “described in subsection (1)” and by adding in the French version of the subsection the wording “et le dépose auprès de la commission” to align the English and French versions of the subsection.
  • Replace the French wording of paragraph 10(2)(d) with “la probabilité que la personne puisse contribuer de façon utile et différente à la compréhension des questions en litige par la commission” to align with the English text of the paragraph.
  • Improve the clarity of section 8 of the Rules by adding subsection 8(2) to emphasize that written submissions are to be filed with the board at least seven days before the hearing.

Although the Amendments introduce additional requirements to the Rules that address the issue of awarding costs and related procedure by a board, they are not expected to result in incremental compliance costs or undue burden on interested parties.

The Amendments come into force on the day on which they are registered.

Consultation

As the Amendments are not expected to result in any incremental impacts on interested parties, no formal consultations were held.

Consultation following publication of the proposed Amendments in the Canada Gazette, Part I, on October 9, 2010

The Amendments were pre-published in the Canada Gazette, Part I, for a 60-day public comment period. No comments were received.

Implementation, enforcement and service standards

Given that the Amendments are technical in nature, they do not result in the implementation of any new program or activities. Consequently, developing an implementation strategy or service standard is not required.

Contacts

Laura Farquharson
Executive Director
Legislative Governance
Environment Canada
351 St-Joseph Boulevard
Gatineau, Quebec
K1A 0H3
Telephone: 819-953-1055
Fax: 819-997-9806
Email: laura.farquharson@ec.gc.ca

Luis Leigh
Director
Regulatory Analysis and Valuation Division
Environment Canada
10 Wellington Street, 24th Floor
Gatineau, Quebec
K1A 0H3
Telephone: 819-953-1170
Fax: 819-997-2769
Email: luis.leigh@ec.gc.ca

Footnote a
S.C. 1999, c. 33

Footnote b
S.C. 1999, c. 33

Footnote c
S.C. 1999, c. 33

Footnote 1
SOR/2003-28