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Tribunal Procedures
Tribunal Procedures
Table of Contents
Foreword
This manual constitutes the fourth edition of the Tribunal
Procedures. Initially, it was intended to provide guidelines to
the operations of the Canadian Artists and Producers Professional
Relations Tribunal. Over the years, its contents have been modified to
better serve the artists and producers subject to the Status of
the Artist Act.
On October 20, 2003, the Canadian Artists and Producers
Professional Relations Tribunal Procedural Regulations ("the
Regulations") were enacted giving force of law to
certain established practices. Given that it is not possible to
include in a regulatory text all aspects relating to the
Tribunal's practices, we have decided to continue the publication
of the Tribunal Procedures in paper and electronic format.
This manual is another tool for users of the Tribunal in addition to
the Status of Artist Act Annotated and the Guide for
Self-represented Parties, copies of which are available on the
Tribunal's web site at www.capprt-tcrpap.gc.ca.
The governing principle of the Tribunal's practices and procedures
is found in subsection 19(1) of the Status of the Artist
Act: "to proceed as informally and expeditiously as the
circumstances and considerations of fairness permit." With this
principle in mind, the Tribunal intends to make every effort to
conduct its proceedings in a manner that will allow those who appear
before it to represent themselves.
We have endeavoured to ensure that the Tribunal Procedures
are consistent with the Regulations. However, should any
inconsistency arise between the Regulations and this
document, the Regulations will have precedence.
Anyone wishing to comment on the Tribunal's written materials is
invited to do so by writing to us at the address below:
The Canadian Artists and Producers Professional Relations
Tribunal
240 Sparks Street, 1st Floor West
Ottawa, Ontario K1A 1A1
Telephone: (613) 996-4052
1 800 263-2787
Facsimile: (613) 947-4125
E-mail address: info@capprt-tcrpap.gc.ca
A Brief History of the Tribunal
In 1992 Parliament passed the Status of the Artist Act, and
in June 1993 the provisions of the Act creating the
Canadian Artists and Producers Professional Relations Tribunal were
brought into force. The first members of the Tribunal were appointed
in March 1995 and the substantive provisions of the Act
were brought into force on May 9, 1995.
Section 7 of the Act states that the purpose of
Part II of the Act is "to establish a framework to
govern professional relations between artists and producers that
guarantees their freedom of association, recognizes the importance of
their respective contributions to the cultural life of Canada and
ensures the protection of their rights."
The Tribunal's responsibilities include defining the sectors of
cultural activity subject to federal jurisdiction that are suitable
for collective bargaining, and certifying artists' associations to
represent these sectors. In addition, the Tribunal hears and decides
complaints of unfair practices and other matters filed by artists,
artists' associations and producers, and prescribes appropriate
remedies for violations of the Act.
1 Certification of Artists' Associations
What certification is
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In the Status of the Artist Act (the
"Act"), the term "certification"
is used to mean the recognition granted to an artists'
association by the Canadian Artists and Producers
Professional Relations Tribunal. Obtaining such certification
gives an artists' association the exclusive right to
represent self-employed artists in a specific sector with
respect to collective bargaining and their relations with
producers within federal jurisdiction (broadcasting
undertakings and federal government institutions).
Broadly speaking, a "sector" is composed of
independent artists that the applicant is seeking to
represent in bargaining with the producers in federal
jurisdiction who engage their services.
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Who can apply for certification?
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An artists' association may apply to the Tribunal for
certification to represent a sector in negotiations with
producers within federal jurisdiction. An artists'
association is defined as an organization which has among its
objectives the management or promotion of the professional
and socio-economic interests of artists who are independent
contractors.
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When to apply for certification
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The application must be made within the time periods set out
in section 25 of the Act:
If no artists' association has been certified for the
sector, and
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if no other application for certification in respect of
the sector is pending before the Tribunal, the application
can be made at any time;
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if another application for certification has already been
made in respect of the sector, applications by other
artists' associations must be made during the period
of public notice prescribed by the Tribunal, unless the
Tribunal grants consent for the making of the application.
If another artists' association has already been
certified for the sector, and
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if there is at least one scale agreement in force in the
sector, an application by another artists' association
to replace the certified artists' association may only
be made in the three months immediately before the
existing certification order is due to expire;
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if no scale agreement is in force for the sector, an
application to replace an existing artists'
association can be made by another artists'
association one year after the date on which the existing
certification was issued or renewed.
"Scale agreement" is defined in section 5 of the
Act and refers to a written agreement between a
producer and an artists' association which sets out the
minimum terms and conditions for the provision of
artists' services and other related matters.
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How to apply for certification Regs s. 25 & s. 8
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The written application must contain the following
information:
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the artists' association's name, address,
telephone number and fax number, if any;
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the name, address, telephone number and fax number of the
applicant's authorized representative, if any;
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a general description of the sector for which
certification is being sought;
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an estimate of the number of professional freelance
artists working in this sector;
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an estimate of the number of members of the applicant who
work in the proposed sector;
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a current copy of the applicant's membership list
certified by the applicant's authorized representative
indicating:
(a) the members' full names and current addresses,
and
(b) if the applicant also represents individuals who do
not work within the proposed sector, a list of those
members who work in the proposed sector;
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a copy of any scale agreements in force affecting the
proposed sector;
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a copy of the applicant's by-laws certified by its
authorized representative; applicants should ensure that
their by-laws conform with section 23 of the
Act, which requires that the by-laws of the
association:
(a) establish membership requirements for artists;
(b) give regular members the right to take part and vote
in meetings and participate in ratification votes
affecting them;
(c) provide members with the right of access to a copy of
the applicant's financial statements;
(d) not have the effect of discriminating unfairly
against an artist so as to prevent the artist from
becoming or continuing as a member of the association.
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evidence that the membership has authorized the applicant
to apply for certification (artists' associations must
follow the provisions contained in their own constitution
or by-laws to obtain authorization from their membership
to make an application for certification);
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the signature of the applicant or the applicant's
authorized representative;
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the date of the application.
The application must be accompanied by all relevant
documents. Applicants may use the Form provided by the
Tribunal for the purpose of making an application for
certification.
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Where to apply
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Applications for certification should be sent to:
Canadian Artists and Producers Professional Relations
Tribunal
1st Floor West
240 Sparks Street
Ottawa, Ontario K1A 1A1
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What happens after an application is received
Regs s. 26
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Application is acknowledged
Upon receiving the application for certification, the
Tribunal will send the applicant an acknowledgement of
receipt. An officer of the Tribunal will review the
application and will contact the applicant if any of the
required information is missing or incomplete.
If the application is untimely, or if it is incomplete and
the applicant fails to provide the information requested by
the Tribunal within a specified time period, the Tribunal may
dismiss the application. Before taking this step, the
Tribunal will provide the applicant with an opportunity to
make representations on the issue.
A public notice of the application is published
Once the application is complete, the Tribunal will publish a
public notice in order to provide artists, artists'
associations and producers with an opportunity to make their
interest in the application known to the Tribunal. The public
notice will be published in the Canada Gazette Part I and
through such other means as the Tribunal considers
appropriate.
The notice will set out the name of the applicant
association, a description of the proposed sector and will
set a time period for the receipt of applications by other
artists' associations in respect of the sector. The time
period will be at least 30 calendar days from the date
the notice is published. During this time period, in addition
to artists and producers, any person or organization who has
an interest in the application may signify their interest in
being heard on the matter by writing to the Tribunal and
outlining the nature of their interest.
The Tribunal also maintains a mailing list of individuals and
organizations who have indicated a desire to be informed of
applications for certification received by the Tribunal.
The Tribunal will consider the merits of the application
When the time period specified in the public notice has
expired, the Tribunal will proceed to consider the merits of
the application. There are two stages to this process. First,
the Tribunal will determine the sector that is suitable for
bargaining and second, it will determine the
representativeness of the association applying for
certification.
The Tribunal may hold oral hearings with respect to either or
both of these stages or it may proceed solely on the basis of
the written material submitted to it. The applicant and any
persons or organizations who have notified the Tribunal of
their interest in the application will be notified of the
process the Tribunal intends to adopt with respect to a
specific application.
Determination of the suitability of a sector for bargaining
Artists, artists' associations, producers and
producers' associations affected by an application for
certification have the right to make representations to the
Tribunal regarding the suitability of a sector for
bargaining. Anyone else who wishes to be heard on this issue
must first obtain the Tribunal's permission. At the
Tribunal's discretion, the representations may be oral or
written.
The applicant and any intervener making representations
regarding suitability should include comments on the
following matters:
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whether the independent artists in the proposed sector
have common interests;
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whether there is a history of professional relations among
those artists and the producers to whom they provide
services;
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whether any scale agreements regarding terms of engagement
already exist;
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any relevant geographic and linguistic criteria; and
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any other factors that may be relevant.
Determination of the representativeness of the applicant
Once the Tribunal has determined that a sector is suitable
for bargaining, the next step is for the Tribunal to
determine which artists' association is most
representative of artists in that sector.
The artists' association that is most representative is
entitled to be certified to bargain with producers on behalf
of artists in the sector. The Tribunal has discretion to
determine representativeness as of the date the artists'
association filed its application for certification in
respect of a sector, or as of any other date that the
Tribunal considers appropriate. The Tribunal also has
discretion as to how it will assess representativeness. The
two most common means used to determine representativeness
are membership evidence (for example, membership lists) and
representation votes.
Artists and artists' associations affected by an
application for certification have the right to provide the
Tribunal with their views regarding the representativeness of
any artists' association relative to a particular sector.
Anyone else who wishes to be heard on this issue must first
obtain the Tribunal's permission. At the Tribunal's
discretion, the representations may be oral or written.
The certification order
If the Tribunal is satisfied that an applicant artists'
association is the most representative of independent artists
working in a sector that has been found to be suitable for
bargaining, the Tribunal will issue a certification order
granting that association the exclusive right to represent
all artists working in the sector for a period of three
years. Certifications are automatically renewed every three
years unless another artists' association makes an
application within the prescribed time period, or an artist
makes an application to have the certification revoked.
(Section 25 of the Act sets out the time periods in
which another artists' association can make an
application to be certified if there is a pre-existing
certification. Section 29 of the Act sets out the
grounds on which an artist may apply to have the incumbent
association's certification revoked).
Consequences of certification
Once the artists' association has been certified by the
Tribunal, it is entitled to issue a notice requiring federal
producers who engage artists in the sector to bargain. A
producer is also entitled to send a notice to bargain to the
certified artists' association.
The objective of these negotiations is to reach a scale
agreement setting out the terms and conditions under which
independent artists will work for the producers. Although the
scale agreements will set out the minimum terms and
conditions that producers must provide to the independent
artists who do work for them, individual artists continue to
have the right to negotiate personal contracts containing
terms and conditions above these minimums.
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2 Associations of Producers
What is an association of producers?
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The Status of the Artist Act defines producers as
federal government institutions and broadcasting
undertakings. These producers are entitled to form
associations for the purpose of bargaining and entering into
scale agreements with artists' associations. The
formation of an association of producers is entirely
voluntary.
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How do producers obtain recognition of their association?
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In order to obtain the exclusive right to bargain on behalf
of its members, an association of producers must file the
following information with the Tribunal:
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a copy of its membership list;
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the name, address, telephone number and fax number of the
authorized representative of the association of producers;
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the name of every artists' association from whom it
has received a notice to bargain or with whom it has
entered into a scale agreement.
The membership list filed with the Tribunal must be kept
up-to-date by sending to the Tribunal the name of any
producer who joins or withdraws from the association of
producers, and the date of membership or withdrawal from
membership.
The membership list and any updates to it should be sent to:
Canadian Artists and Producers Professional Relations
Tribunal
1st Floor West
240 Sparks Street
Ottawa, Ontario K1A 1A1
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What is the effect of filing a membership list with the
Tribunal?
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Once an association of producers has filed its membership
list with the Tribunal, that association has the exclusive
right to bargain on behalf of its members for the purpose of
entering into or amending a scale agreement.
A scale agreement which is entered into by an association of
producers binds each producer who was a member of the
association at the time the agreement was signed or who
subsequently joins the association, even if the association
is later dissolved or the producer withdraws from membership
in the association. In the event that a producer withdraws
from an association of producers, any scale agreement that
was negotiated while that producer was a member will continue
to apply to the producer until the date it expires.
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3 Applications for Revocation of Certification
What is revocation of certification?
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Revocation of certification is a formal procedure to take
away an artists' association's exclusive right to
represent the artists working in a particular sector.
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Basis for a revocation application
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An application for revocation of a certification may be made
based on the grounds that:
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the association's by-laws discriminate unfairly
against an artist so as to prevent the artist from
becoming or continuing as a member of the association; or
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the artists' association is no longer the most
representative of artists in the sector; or
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the artists' association has not made reasonable
efforts to negotiate a scale agreement for the sector.
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Who can apply for revocation of certification?
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Any independent professional artist who works in a sector for
which an artists' association has been certified may
apply to the Tribunal to have that association's
certification revoked on the basis of one of the grounds set
out above.
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When to apply
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The application must be made within the time periods set out
in section 29 of the Act:
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the application can be made at any time if it is based on
the ground that the association's by-laws discriminate
unfairly against the artist so as to prevent the artist
from becoming or continuing as a member of the
association;
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if there is any scale agreement in force for the sector,
an application which claims that the association is no
longer the most representative of artists in the sector,
or that the association has not made reasonable efforts to
negotiate a scale agreement, can only be made in the three
months prior to the date that the certification is due to
expire;
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if there is no scale agreement in force for the sector, an
application which claims that the association is no longer
the most representative, or that the association has not
made reasonable efforts to negotiate a scale agreement,
can be made any time after one year has elapsed from the
date the certification was granted or last renewed.
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How to apply for revocation of certification
Regs s.32 & s.8
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The application must be made in writing and contain the
following information:
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the applicant's name, address, telephone number and
fax number, if any;
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the name, address, telephone number and fax number of the
applicant's authorized representative, if any;
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a description of the sector within which the applicant
works, and for which an artists' association has been
certified;
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the name of the artists' association that holds the
certification that the applicant seeks to revoke;
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the grounds on which the applicant seeks the revocation;
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a description of the facts that the artist alleges would
justify the revocation of the certification;
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the decision or order sought;
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the signature of the applicant or the applicant's
authorized representative;
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the date of the application.
The application must be accompanied by all relevant
documents. Applicants may use the Form provided by the
Tribunal for the purpose of making an application for
revocation of certification.
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Where to apply
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Applications for revocation of certification should be sent
to:
Canadian Artists and Producers Professional Relations
Tribunal
1st Floor West
240 Sparks Street
Ottawa, Ontario K1A 1A1
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What happens after an application is received
Regs s.33 & s.34
Regs s.35 & s. 10
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Application is acknowledged
Upon receiving an application for revocation of
certification, the Tribunal will send the applicant an
acknowledgement of receipt. An officer of the Tribunal will
review the application and will contact the applicant if any
of the required information is missing or incomplete. If the
application is untimely, or if it is incomplete and the
applicant fails to provide the information requested by the
Tribunal within a specified time period, the Tribunal may
dismiss the application without a hearing. Before taking this
step, the Tribunal will provide the applicant with an
opportunity to make representations on the issue.
Notification is sent to the certified artists'
association
If the application is complete, the Tribunal will send a copy
of the application to the artists' association affected
and request a response from the association. If the grounds
for the application are that the association's by-laws
are discriminatory, the Tribunal may provide the association
with a time period in which to adopt by-laws that meet the
requirements of the Act, and if the association
complies then the application may be stayed.
Applicant is provided with a copy of the artists'
association's response
When the Tribunal receives the response of the artists'
association, it will send a copy of that response to the
applicant and allow the applicant a period of time in which
to reply in writing to the Tribunal on any facts or arguments
put forward by the association.
Producers and producers' associations may comment
Depending on the circumstances, the Tribunal may also provide
any producer or producers' association affected by an
application for revocation with a copy of the application and
an opportunity to comment.
Determination of type of Tribunal proceedings
On the basis of the written material received from the
applicant and the artists' association, the Tribunal will
decide whether an oral hearing is necessary or whether it can
make a decision based on the written information which has
been provided to it. The applicant and the artists'
association will be notified of the process the Tribunal
intends to adopt with respect to a specific application.
Consideration of the merits and decision
After considering all of the evidence presented to it, the
Tribunal will make its decision and notify the applicant, the
artists' association and any producer or producers'
association affected.
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4 Steps in the Complaint Process
What kinds of complaints can be made to the Tribunal?
Obligations and prohibitions applicable to producers and to
producers' associations
Obligations and prohibitions applicable to artists'
associations
Obligations and prohibitions applicable to artists
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The Status of the Artist Act contains a number of
obligations and prohibitions which apply to artists,
artists' associations, producers and producers'
associations. Section 32 (duty to bargain and not change
the
terms and conditions), section 35 (duty of fair
representation), section 50 (prohibitions relating to
producers), section 51 (prohibitions relating to artists'
associations) and section 52 (prohibition of
intimidation or
coercion) can form the basis of a complaint to the Tribunal.
Examples of the obligations and prohibitions include:
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the duty to bargain in good faith and make every
reasonable effort to enter into a scale agreement;
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the requirement not to alter any term or condition of
engagement or right or privilege of an artist or an
artists' association contained in a scale agreement,
without the consent of the artists' association, until
at least 30 days following the expiry of the scale
agreement;
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the requirement not to participate in, authorize or apply
pressure tactics against an artist or artists'
association until after the commencement of the legal
period for such tactics;
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the requirement not to refuse to engage an artist or
honour an artist's contract, or discriminate against,
intimidate, threaten or discipline an artist because the
artist has exercised any rights to which the artist is
entitled under the Act.
Examples of the obligations and prohibitions include:
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the duty to bargain in good faith and make every
reasonable effort to enter into a scale agreement;
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the duty not to act in a manner that is arbitrary,
discriminatory or in bad faith with respect to the
representation of any artist's rights under a scale
agreement applicable in a sector for which the association
is certified;
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the requirement not to participate in, authorize or apply
pressure tactics against a producer until after the
commencement of the legal period for such tactics;
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the requirement not to intimidate, coerce or impose a
financial or other penalty on an artist because the artist
has exercised any rights to which the artist is entitled
under the Act.
Examples of the obligations and prohibitions include:
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the requirement not to participate in, authorize or apply
pressure tactics against a producer until after the
commencement of the legal period for such tactics;
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the requirement not to use intimidation or coercion to try
to force anyone to become or cease from being a member of
an artists' association.
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Who can make a complaint?
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Any person or organization can make a complaint to the
Tribunal.
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When can complaints be made?
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Complaints must be made within six months of the date that
the complainant first knew or ought to have known of the
action or circumstance giving rise to the complaint.
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How to make a complaint
Regs s.38 & s.8
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A complaint must be made in writing and contain the following
information:
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the name, address, telephone number and fax number, if
any, of the person making the complaint ("the
complainant");
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the name, address and telephone number and fax number, if
any, of the person, producer, producers' association
or artists' association against whom the complaint is
being made ("the respondent");
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the name, address, telephone number and fax number, if
any, of any person to whom copies of correspondence
concerning the complaint should be sent (e.g.
complainant's representative);
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the provision of the Status of the Artist Act
which the complainant feels has been violated;
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a full factual description of the events, circumstances
and actions taken by the respondent which led to the
complaint;
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the date on which the complainant first knew of the action
or circumstances which led to the complaint;
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the details of any actions already taken by the
complainant to try to resolve the complaint;
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a description of the corrective action (remedy) sought by
the complainant;
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the signature of the complainant or the complainant's
authorized representative;
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the date of the complaint.
The application must be accompanied by all relevant
documents. Complainants may use the Form provided by the
Tribunal for the purpose of making a complaint.
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Where to send the complaint
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Complaints should be sent to:
Canadian Artists and Producers Professional Relations
Tribunal
1st Floor West
240 Sparks Street
Ottawa, Ontario K1A 1A1
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What happens after a complaint is received
Regs s. 39, s. 9 & par. 17(1)(a)
Regs subs. 17(2)
Regs s. 39 & s. 9
Regs s. 40 & par. 17(1)(b)
Regs subs. 17(2)
Regs s. 40 & s. 10
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Complaint is acknowledged
Upon receiving the complaint, the Tribunal will send the
complainant an acknowledgement of receipt. An officer of the
Tribunal will review the complaint and will contact the
complainant if any of the required information is missing or
incomplete.
Preliminary considerations are examined
The Tribunal may refuse to deal with any complaint if it is
of the opinion that the complaint:
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is not within its jurisdiction;
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is untimely;
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is no longer relevant (i.e., is moot);
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is frivolous, vexatious, or in bad faith; or
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should have been referred to arbitration under a scale
agreement.
The Tribunal may raise these considerations on its own
initiative, or they may be raised by any other party to the
complaint. Before making a decision to refuse to hear a
complaint, the Tribunal will provide the complainant with an
opportunity to make representations on these matters.
Respondent is given an opportunity to respond to the
complaint
The Tribunal will send a copy of the complaint and any
documents submitted by the complainant to the respondent and
provide the respondent with an opportunity to respond to the
complaint.
The Tribunal will specify a time period for receipt of the
response, which will ordinarily be 15 calendar days from the
date the complaint is sent to the respondent. A respondent
may request that this time period be extended by the
Tribunal. If a respondent fails to request and obtain an
extension of the time for submitting a response, or fails to
provide a response within the time allowed, the Tribunal may
proceed to deal with the complaint without further notice to
that respondent.
A response to a complaint must be in writing and include the
following:
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the respondent's name, address, telephone number and
fax number, if any;
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the name, address, telephone number and fax number of the
respondent's authorized representative, if any;
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the Tribunal file number of the proceeding to which the
response relates;
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a full response to any allegations or issues raised in the
proceeding and full particulars of any additional relevant
facts on which the respondent intends to rely;
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the respondent's position with respect to the
determination or order sought by the complainant;
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the signature of the respondent or the respondent's
authorized representative; and
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the date of the response.
The response must be accompanied by all relevant documents.
Complainant is given an opportunity to reply
Upon receipt of the response from the respondent, the
Tribunal will provide a copy of the response to the
complainant in order to allow the complainant an opportunity
to submit a reply. A reply is the complainant's response
to any new issues or facts raised in a respondent's
response. The Tribunal will establish a time period within
which the reply must be made, which will normally be 10
calendar days from the date a copy of the respondent's
response is sent to the complainant. The complainant may
request that this time period be extended by the Tribunal.
The complainant is not obliged to make a reply, but should do
so if the complainant intends to bring forward facts that
were not set out in the original complaint.
The reply must be made in writing, within the time period set
by the Tribunal, and contain:
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the Tribunal file number of the proceeding to which the
reply relates;
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a full reply to any allegations or issues raised in the
response and full particulars of any additional relevant
facts on which the complainant intends to rely;
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the signature of the complainant, or the complainant's
authorized representative; and
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the date of the reply.
The reply must be accompanied by all relevant documents.
Mediation
The Tribunal may appoint one of its members or an officer
from its own staff to meet with the complainant and the
respondent in an effort to resolve the complaint. Any
discussions which take place during this resolution stage are
confidential, and no documents or information relating to
this stage can be placed in evidence before the Tribunal in
the event that it becomes necessary to proceed to the hearing
stage.
Type of Tribunal proceedings
If the Tribunal does not appoint a person to assist in
resolving the complaint, or if resolution efforts are not
successful, the Tribunal will proceed to consider the
complaint. This consideration may consist of deliberations
based entirely on written material submitted by the
complainant, the respondent and anyone who has been given
permission to intervene in the complaint, or it may involve
the hearing of oral testimony and representations from the
parties and interveners.
Upon conclusion of its proceedings, the Tribunal will decide
the complaint and will notify the complainant, the respondent
and any interveners of its decision.
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5 Applications for Determinations or Declarations
What kinds of determinations or declarations can the Tribunal be
asked to make?
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The Tribunal may be asked to consider and decide a variety of
questions. For example, it may be asked:
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to determine what rights, privileges and duties an
artists' association has acquired as a result of a
merger, amalgamation or transfer of jurisdiction among
associations (s. 30 of the Act);
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to determine whether a right or benefit under an
individual contract between an artist and a producer is
more favourable to that artist than the provisions of the
scale agreement which applies to the engagement
(subs. 33(5) of the Act);
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to answer any question arising during an arbitration
proceeding which requires a determination as to whether a
scale agreement exists, who the parties to the agreement
are, or whether an agreement applies to a particular
sector or artist (s. 41 of the Act);
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whether pressure tactics are being applied by a producer
or an artists' association in contravention of the
Act (s. 47 and s. 48 of the
Act).
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Who can apply for determinations or declarations?
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In the case of a question arising during an arbitration
proceeding, only the arbitrator or arbitration board can
apply to the Tribunal for a determination of the question.
With respect to the other types of determinations or
declarations, an artist, an artists' association, a
producer or a producers' association which has an
interest in the subject matter may make the application.
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When can applications be made?
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Applications for determinations or declarations can be made
at any time.
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How to make an application
Regs s. 41 & s. 8
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An application to the Tribunal for a determination or
declaration must be made in writing and contain the following
information:
-
the applicant's name, address, telephone number and
fax number, if any;
-
the name, address, telephone number and fax number of the
applicant's authorized representative, if any;
-
the name, address and telephone and fax number, if any, of
any artist, artists' association, producer or
producers' association affected by the application;
-
a reference to the section of the Act under which
the application is being made;
-
the question which the applicant wishes to have the
Tribunal determine or the nature of the declaration which
the applicant is seeking;
-
the grounds on which the applicant relies and a full
description of the facts giving rise to the application;
-
the signature of the applicant or the applicant's
authorized representative;
-
the date of the application.
The application must be accompanied by all relevant
documents. Applicants may use the Form provided by the
Tribunal for the purpose of making an application for a
determination or declaration.
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Where to send the application
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Applications for determinations or declarations should be
sent to:
Canadian Artists and Producers Professional Relations
Tribunal
1st Floor West
240 Sparks Street
Ottawa, Ontario K1A 1A1
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What happens after an application is received
Regs s. 42 & s. 9
Regs s. 43 & s. 10
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Application is acknowledged
Upon receiving an application for a determination or a
declaration, the Tribunal will send the applicant an
acknowledgement of receipt. An officer of the Tribunal will
review the application for completeness and will contact the
applicant if any of the required information is missing or
incomplete.
If the application is incomplete and the applicant fails to
provide the information requested by the Tribunal within a
specified time period, the Tribunal may dismiss the
application without a hearing. Before taking this step, the
Tribunal will provide the applicant with an opportunity to
make representations on the issue.
Other affected parties are given opportunity to make
representations
The Tribunal will send a copy of the application to any other
organization affected by the application, and provide that
organization with a period of time in which to submit any
representations it wishes to have the Tribunal consider.
Applicant is given opportunity to comment
The Tribunal will provide a copy of any representations it
receives to the applicant and will allow the applicant a
further period of time in which to comment.
Type of Tribunal proceedings
Once the time period set by the Tribunal for the submission
of representations and comments has expired, the Tribunal
will review the material before it and determine whether an
oral proceeding is required.
If an oral proceeding is not required, the Tribunal will
consider the application on the basis of all of the documents
in its possession and decide whether or not to make the
determination or declaration which was sought.
If the Tribunal is of the opinion that an oral proceeding is
required, it will notify the applicant and all of the
affected parties of the date set for the hearing. Following
the oral proceeding, the Tribunal will decide whether or not
to make the determination or declaration which was sought.
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6 Interim Decisions and Orders
What kinds of interim decisions and orders can the Tribunal
make?
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During the course of its proceedings on an application or
complaint, the Tribunal may find it necessary to decide
various preliminary issues. Subsection 20(2) of the
Act gives the Tribunal the authority to issue
interim decisions and orders regarding such issues, provided
that it can do so without prejudice to the rights of any
party or intervener in the proceeding.
For example, before the Tribunal proceeds with an application
for certification, it will often have to decide whether or
not to grant intervener status to individuals or
organizations that have requested the Tribunal's
permission to intervene pursuant to subsection 19(3) of
the Act. A determination of this kind is considered
to be an interim decision. When there are a number of
interveners in a case, the Tribunal may issue a procedural
order setting out the rights of each intervener and
establishing time limits for the filing of documents. In the
context of a Tribunal proceeding, this is considered an
interim order.
The participants in a proceeding will always be notified by
the Tribunal of any interim decisions or orders.
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7 Referral of a Question by an Arbitrator or Arbitration Board
What kinds of questions can be referred to the Tribunal?
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An arbitrator or arbitration board can refer to the Tribunal
any question arising during an arbitration proceeding which
requires a determination as to whether a scale agreement
exists, who the parties to the agreement are, or whether an
agreement applies to a particular sector or artist
(s. 41 of the Act).
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Who can refer a question to the Tribunal?
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Only the arbitrator or arbitration board can make a referral
to the Tribunal for a determination of a question arising
during an arbitration proceeding.
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When can a question be referred?
|
A question which arises during an arbitration proceeding can
be referred to the Tribunal at any time in the course of the
proceeding.
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How should a question be referred to the Tribunal?
|
A question must be referred to the Tribunal in writing.
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Where to send the question
|
Questions should be sent to:
Canadian Artists and Producers Professional Relations
Tribunal
1st Floor West
240 Sparks Street
Ottawa, Ontario K1A 1A1
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What happens after a question is referred to the Tribunal
Regs subs. 41(1)
Regs subs. 41(2)
Regs subs. 41(3)
Regs subs. 41(4)
Regs subs. 41(5)
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Parties to the arbitration proceeding given opportunity to
make representations
The Tribunal will send a copy of the question to each of the
parties to the arbitration proceedings and provide them with
a period of time in which to submit any representations they
wish to make.
Any representations which a party wishes to make must be made
in writing and contain the following information:
-
the name, address, telephone and fax number, if any, of
the party;
-
the name, address, telephone and fax number of the
party's authorized representative;
-
the grounds on which the party relies;
-
a full description of the facts relevant to the question
referred to the Tribunal;
-
the determination or order sought;
-
the signature of the applicant or the applicant's
authorized representative;
-
the date of filing of the representations.
Each party's representations must be accompanied by all
relevant documents or filed in any other manner authorized by
the Tribunal.
Each party must serve a copy of the representations and
documents on the other party.
Parties given opportunity to respond
The Tribunal will allow each party a period of time in which
to respond in writing to the representations of the other
party within a specified time period.
Type of Tribunal proceedings
Once the time period set by the Tribunal for the submission
of representations and comments has expired, the Tribunal
will review the material before it and determine whether an
oral proceeding is required.
If an oral proceeding is not required, the Tribunal will
consider the question on the basis of all of the documents in
its possession and decide whether or not to make the
determination or declaration which was sought.
If the Tribunal is of the opinion that an oral proceeding is
required, it will notify the parties of the date set for the
hearing. Following the oral proceeding, the Tribunal will
decide whether or not to make the determination or
declaration which was sought.
Arbitration proceedings not suspended
The referral of a question by an arbitrator or arbitration
board does not suspend the arbitration proceedings, except
where the arbitrator decides to suspend the proceedings or
the Tribunal orders that they be suspended.
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8 Review of Decisions and Orders
Types of review applications
Regs subs. 45(1) & 45(2)
Regs subs. 45(3)
Regs subs. 45(4)
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1. Reconsideration of a Tribunal decision
A party affected by a decision or order of the Tribunal may
make a written application to the Tribunal for a review of
that decision or order on the grounds that:
-
the Tribunal's determination or order contains an
error of law or a serious error of fact; or
-
the applicant has new information or evidence that was not
available at the time the decision or order was originally
made, and which could alter the basis on which the
determination or order was made.
An application for reconsideration of a Tribunal decision
should be made within 30 calendar days of the date of
the original determination or order. If this time period is
exceeded, the applicant must provide a compelling reason why
this time limit should be waived.
It should be noted that the filing of an application for
reconsideration of a Tribunal decision or order does
not extend or affect the time limits imposed by the
Federal Court regarding the filing of an application for
judicial review of a Tribunal determination
or order.
2. Review of a sector determination
The certified artists' association or a producer affected
by a Tribunal decision prescribing the sector suitable for
bargaining may apply in writing to the Tribunal for a review
of the sector determination. The purpose of such applications
may be to enlarge, modify or clarify the scope of the sector
determination. Such applications can be made at any time.
3. Updating a certification order
An artists' association which has been certified to
represent artists in a specific sector may apply to the
Tribunal for an order updating the certification order to
reflect routine matters such as a change in the
association's name or the terminology used to describe
the sector. Ordinarily, the purpose of such applications is
merely to request that the Tribunal update its order to
reflect the current status quo. Such applications can be made
at any time.
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Who can apply for review of a Tribunal decision or order?
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Any artist, artists' association, producer or
producers' association affected by a particular Tribunal
decision or order may apply to the Tribunal for a review of
that decision or order. The Tribunal also has the ability to
act on its own initiative to review an earlier decision or
order. This type of "internal" review of Tribunal
decisions and orders should be distinguished from judicial
review, which is explained in Chapter 24.
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When can an application be made?
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The timeliness of an application for review of a Tribunal
determination or order depends upon the type of order or
determination and the reason for which the review is being
sought. The time limits for each type of review application
is explained in 1, 2 and 3 above.
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How to apply for review
Regs subs. 45(5) & s. 8
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An application for review must be in writing and contain the
following information:
-
the name, address and telephone and fax number, if any, of
the artist, artists' association, producer or
producers' association making the application for
review ("the applicant");
-
the name, address, telephone and fax number of the
applicant's authorized representative, if any;
-
the name, address, telephone and fax number, if any, of
any artists' associations or producers affected by the
determination or order;
-
the file number and date of the determination or order
which the applicant wishes to have reviewed;
-
the grounds on which the applicant relies and full
particulars of the facts which the applicant believes
would justify a review of the determination or order;
-
a description of the decision or order which the applicant
is seeking;
-
the signature of the applicant or the applicant's
authorized representative;
-
the date of the application.
The application must be accompanied by all relevant
documents. Applicants may use the Form provided by the
Tribunal for the purpose of making an application for review.
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Where to apply for review
|
Applications for review should be sent to:
Canadian Artists and Producers Professional Relations
Tribunal
1st Floor West
240 Sparks Street
Ottawa, Ontario K1A 1A1
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What happens after an application for review is received
Regs s. 47 & s. 9
Regs s. 48 & s. 10
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Application is acknowledged
Upon receipt of an application for review of one of its
decisions or orders, the Tribunal will send the applicant an
acknowledgement of receipt. An officer of the Tribunal will
review the application for completeness and will contact the
applicant if any of the required information is missing or
incomplete.
The Tribunal may be asked to rule on the timeliness of the
application as a preliminary matter. If this issue is raised,
the applicant will be provided with an opportunity to make
representations to the Tribunal.
Affected parties given opportunity to make representations
The Tribunal will send a copy of the application to any
artists' association, producer and producers'
association affected by the review, and will provide them
with a time period in which to submit representations to the
Tribunal regarding the review. In addition, if the outcome of
the review could have the effect of enlarging a sector, the
Tribunal may publish a notice of the application in order to
provide an opportunity for public comment.
Applicant given opportunity to comment
A copy of any representations received will be sent to the
applicant, and an opportunity will be provided for the
applicant to submit comments.
Investigation
The Tribunal may appoint one of its members or staff to
conduct an investigation of the application and to prepare a
report to the Tribunal. Any report prepared for the Tribunal
will be provided to the applicant and any person or
organization that has submitted representations.
Type of Tribunal proceedings
On the basis of the documentary information provided to it,
the Tribunal will either make a decision on the review
application or will decide to hold an oral proceeding. If the
Tribunal is of the view that an oral proceeding is required,
it will set a date for the hearing and will notify the
applicant and any person or organization which has submitted
representations.
Upon conclusion of its proceedings, the Tribunal will make a
decision on the review application and will send a copy of
this decision to the applicant and those who submitted
representations.
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9 Interventions in Tribunal Proceedings
What is an intervention?
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An intervention is the submission of representations
concerning a matter that is before the Tribunal by a person
or group who is not a party in the case.
Anyone who is not an applicant, a complainant or a
respondent, but who wishes to make representations to the
Tribunal regarding a matter which is before it, is called an
intervener. There are two types of
interveners: those who have a statutory right to appear and
be heard by the Tribunal ("as of right
interveners") and those who have been given permission
by the Tribunal to appear and be heard ("interveners by
permission").
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Who are "as of right interveners" and who needs the
Tribunal's permission to intervene?
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1. Artists
Any artist affected by an application for certification is
entitled to be an intervener as of right with respect to the
application. That artist is entitled to make representations
as to the suitability of the sector for bargaining and as to
the representativeness of the applicant.
Unless the artist is the applicant, complainant or
respondent, he or she would need the Tribunal's
permission to intervene in any other type of case before the
Tribunal (e.g. complaints, applications for declarations,
etc.).
2. Artists' associations
Any artists' association affected by another
association's application for certification is entitled
to be an intervener as of right with respect to the
application. That artists' association is entitled to
make representations as to the suitability of the sector for
bargaining and as to the representativeness of the applicant.
Unless the artists' association is the applicant,
complainant or respondent, it would need the Tribunal's
permission to intervene in any other type of case before the
Tribunal (e.g. complaints, applications for declarations,
etc.).
3. Producers
A producer who is affected by an application for
certification is entitled to be an intervener as of right
with respect to the issue of the suitability of the sector
that the applicant is seeking to represent in collective
bargaining.
Unless the producer is the applicant, complainant or
respondent, they would need the Tribunal's permission to
intervene in any other type of case before the Tribunal (e.g.
complaints, applications for declarations, etc.).
4. Producers' Associations
Any producers' association affected by an application for
certification is entitled to be an intervener as of right
with respect to the issue of the suitability of the sector
that the applicant is seeking to represent in collective
bargaining.
Unless the producers' association is the applicant,
complainant or respondent, it would need the Tribunal's
permission to intervene in any other type of case before the
Tribunal (e.g. complaints, applications for declarations,
etc.).
5. Members of the public
A member of the public who is interested in a matter before
the Tribunal always requires the Tribunal's permission to
intervene.
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How do "as of right interveners" exercise their
rights?
Regs subs. 27(1)
Regs subs. 27(2)
Regs subs. 27(3)
How do others obtain the Tribunal's permission to
intervene?
Regs s. 11 par. 17(1)(a)
Criteria used by the Tribunal to determine intervener status
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To take advantage of their right to be heard, an artist,
artists' association, producer or producers'
association affected by an application for certification must
contact the Tribunal in writing at the address below within
the time period set out in the Public Notice. The notice of
intervention must contain the following information:
-
the intervener's name, address and telephone number
and fax number, if any;
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the name, address and telephone number and fax number of
the intervener's authorized representative, if any;
-
the Tribunal's file number indicated in the Public
Notice;
-
the signature of the intervener or their authorized
representative;
-
the date of the filing of the notice of intervention.
The Tribunal may request that an intervener file the grounds
for their intervention and their interest in the matter.
Interveners as of right may use the Form provided by the
Tribunal for the purpose of notifying the Tribunal of their
intention to participate.
Any individual or organization that is not entitled to
intervene as of right, may apply to the Tribunal in writing
at the address below during the time period set out in the
Public Notice, if applicable, providing the following
information:
-
the name, address and telephone number and fax number, if
any, of the applicant for leave to intervene;
-
the name, address, telephone and fax number of the
authorized representative, if any, of the applicant for
leave to intervene;
-
the Tribunal file number of the case that is the subject
of the application for leave to intervene;
-
the grounds for the intervention and the nature of the
interest of the applicant for leave to intervene in the
matter;
-
the contribution that the applicant for leave to intervene
expects to make to the proceeding if granted permission to
intervene.
-
the signature of the applicant for leave to intervene or
of their authorized representative;
-
the date of the application for leave to intervene.
The application must be accompanied by all relevant
documents. Applicants may use the Form provided by the
Tribunal for the purpose of making an application for
intervener status.
It should be noted that the Tribunal has discretion as to
whether or not intervener status will be granted and the
extent of the rights of participation which will be
permitted.
In deciding whether or not to grant permission to intervene,
the Tribunal will consider the following factors:
-
whether the individual or organization seeking to
intervene is directly affected by the outcome of the
proceeding;
-
whether the individual or organization's position is
already represented by another participant in the
proceeding;
-
whether the public interest and/or the interests of
justice would be served by permitting the individual or
organization to intervene;
-
whether the Tribunal could hear and decide the matter
without the input of the individual or organization.
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Where to send the application
|
Notices and applications should be sent to:
Canadian Artists and Producers Professional Relations
Tribunal
1st Floor West
240 Sparks Street
Ottawa, Ontario K1A 1A1
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10 Exchange of Documents and Information
Regs s. 19 & s. 20
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Every participant in a proceeding is entitled to know the
case to which that participant will be required to respond,
and not to be taken by surprise during a proceeding. The
Tribunal expects participants to act reasonably and
cooperatively to achieve this objective.
Prior to the hearing of an application or complaint, any
participant in the proceeding may request disclosure from the
other participants of any documents or information relevant
to the proceeding. If disclosure is not forthcoming within 10
days of the request, the participant seeking disclosure may
apply to the Tribunal for an order requiring the other
participant to produce all of the documents which the
Tribunal considers necessary for the full investigation and
consideration of the application or complaint. A participant
who has arbitrarily or without good reason failed to disclose
relevant documents prior to the hearing may be required to
pay the costs of any adjournment of the proceedings that
results from this failure.
Documents filed with the Tribunal by a participant in a
proceeding will be placed on the Tribunal's case record,
which is open to the public. A participant who wishes to
prevent public disclosure of a specific document should make
application to the Tribunal for protection of
confidentiality. See chapter 23 entitled "Tribunal
Records and Confidentiality" for details.
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11 Evidence Gathering and Mediation
Evidence gathering
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The Chairperson of the Tribunal has the authority to direct a
member of the Tribunal to receive evidence relating to any
matter which is before the Tribunal, and to make a report to
the Tribunal on the evidence so received. A copy of any such
report and an opportunity to make representations on the
report will be provided to all participants in the proceeding
before the Tribunal considers the report.
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Mediation
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When the Tribunal receives an application or a complaint, it
may appoint one of its members or staff to assist the parties
in resolving the issues. All of the discussions which take
place during mediation will be held in confidence and there
will be no report of the mediation process prepared by the
Tribunal representative.
If the mediation effort is successful, the parties will be
asked to sign a memorandum of settlement which will be placed
on the Tribunal's case file.
If the mediation effort is unsuccessful, the Tribunal will be
advised only that there has been no resolution and that a
written or oral proceeding must be held.
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12 Withdrawal or Discontinuance
Withdrawal
|
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Applicants and complainants may decide not to pursue their
application or complaint. In such cases, they should notify
the Tribunal in writing of their desire to withdraw the
application or complaint. The Tribunal has the discretion to
refuse to allow a withdrawal.
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Discontinuance
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If an application or complaint has been dormant for more than
one year and has not been withdrawn, the Tribunal will
contact the applicant or complainant and request an
explanation for the delay. If the applicant or complainant
does not respond within 30 calendar days, or if the
Tribunal is not satisfied with the reasons for the delay, the
Tribunal may declare the application or complaint to be
discontinued.
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13 Preparatory Meetings
Purpose of preparatory meetings
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The purpose of a preparatory meeting is to identify and
narrow the issues that must be resolved by the Tribunal. The
Tribunal may decide on its own initiative to hold a
preparatory meeting, or it may do so at the request of one or
more of the participants in a proceeding.
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Conduct of a preparatory meeting
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When the Tribunal is of the opinion that a preparatory
meeting could be of value in a specific proceeding, it will
notify the participants of the time and place of the meeting.
Preparatory meetings may require personal attendance, or may
be conducted by means of technology such as teleconferencing.
The preparatory meeting may be chaired by a member of the
Tribunal or by one of its staff, as directed by the
Chairperson.
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Matters to be discussed at a preparatory meeting
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The following are examples of the matters which may be
discussed at a preparatory meeting:
-
whether there is any disagreement about the Tribunal's
jurisdiction to hear a particular matter;
-
whether the parties are able to agree on some or all of
the facts which are to be presented to the Tribunal, in
order to avoid the necessity of calling witnesses to prove
each fact;
-
any procedural questions, such as the way in which the
Tribunal will deal with any motions that a party intends
to make and who has the burden of proving various facts;
-
the selection of dates for any oral proceedings which are
to be held and the length of time which each party
believes it will require to present its case;
-
the order in which the parties will be called on to make
their representations to the Tribunal during an oral
proceeding;
-
whether there is any requirement for expert witnesses and
the time frame for providing an advance summary of any
evidence that an expert will be giving;
-
the exchange of any documents or exhibits which will be
used in the proceedings;
-
any other matters that would assist in expediting the
proceedings.
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Settlements reached during preparatory meetings
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Should the participants agree on specific matters during the
course of the preparatory meeting (e.g. admission of specific
facts or evidence, withdrawal of certain objections or
issues), they may wish to document their agreement in writing
and sign it. Written, signed agreements will be placed on the
Tribunal case file and will be binding on the participants.
If a settlement of all of the issues which led to the
application or complaint is reached during a preparatory
meeting, the terms of settlement should be documented and
signed by the participants and the Tribunal representative
presiding at the conference. At the request of any one of the
participants, the Tribunal will issue an order confirming the
terms of settlement.
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14 Tribunal Proceedings
What form do Tribunal proceedings take?
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The Tribunal may decide matters coming before it on the basis
of written submissions, oral representations or both. Oral
proceedings will ordinarily be held where the issues involve
questions of credibility or when the Tribunal wishes to hear
the testimony of witnesses; written proceedings will be the
norm for uncontested matters.
Uncontested applications or questions may be decided by a
one-member panel of the Tribunal. All other proceedings will
involve a panel of at least three Tribunal members.
Oral proceedings will be public, unless the Tribunal
determines that the interest of a participant in the
proceeding in the non-disclosure of certain sensitive
information outweighs the principle of public access.
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Where can proceedings be held?
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The Status of the Artist Act permits the Tribunal to
hold proceedings at such times and locations in Canada as it
considers desirable [subs. 13(2)]. When it determines
that an oral proceeding is necessary, the Tribunal will
endeavour to select a location that is convenient for the
parties to the proceeding. With the consent of the parties,
the Tribunal may also make use of technology such as
telephone conference calls in order to reduce the costs of
travel for participants.
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How are Tribunal proceedings conducted?
Regs s. 23
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Written proceedings
The Tribunal staff will assemble the case file, consisting of
all relevant documents submitted by the participants, any
reports prepared for the Tribunal, and comments on such
reports submitted by the participants.
The case file will be submitted to a panel of Tribunal
members selected by the Chairperson to hear and decide the
case. The panel will consider the material in the file and
will either reach a determination or will indicate to the
staff the areas in which they wish to receive further
evidence or representations from the participants. The panel
may decide that an oral proceeding is necessary for a
determination of the case. If further written material or an
oral proceeding is found to be necessary, Tribunal staff will
contact the participants to make appropriate arrangements.
Oral proceedings
The Chairperson will assign an appropriate number of members
of the Tribunal to act as the panel to hear the case and will
designate the presiding member who will chair all the
meetings of the panel.
The Tribunal staff will determine the availability of the
panel members and the participants and will schedule the
hearing dates. Except in urgent cases, the Tribunal will
endeavour to give participants at least 21 calendar days
notice of all hearings. Tribunal staff will also ascertain
whether any special arrangements are required (e.g.
simultaneous translation) and make the appropriate
arrangements.
At the opening of the oral proceeding, the presiding member
of the Tribunal will call the proceeding to order. The
participants and their counsel, if any, will be asked to
identify themselves and will be given an opportunity to raise
any preliminary issues.
The applicant or complainant will then be asked to present
its case. Witnesses, if any, will be affirmed by the Tribunal
Registrar. Any participant who has an adverse interest to
that of the applicant or complainant will be given an
opportunity to question each witness. The applicant or
complainant will be given an opportunity to reexamine any of
its witnesses who was questioned by another party.
When the applicant or complainant has completed the
presentation of its case, the respondent, if any, will be
asked to present its case. Each witness will be affirmed and
any of the participants who have an interest that is adverse
to the respondent's will be given an opportunity to
question any of the respondent's witness. The respondent
will be given an opportunity to reexamine any of its
witnesses who was questioned by another party.
When the respondent has completed the presentation of its
case, each intervener will be given an opportunity to make a
statement or present its position on the matters in issue
before the Tribunal. The applicant or complainant and the
respondent are entitled to question any intervener or
intervener's witness who makes a statement or presents a
position to the Tribunal. Questions put to witnesses and
interveners must be relevant to the matters in issue before
the Tribunal.
Once all of the interveners have been heard, the applicant or
complainant and the respondent will each be given a final
opportunity to summarize its case and make its argument to
the Tribunal.
The presiding member will then close the proceeding. The
panel may give its decision immediately, or it may reserve
its decision. Whenever possible, the presiding member will
try to give the participants an indication as to when they
might expect to receive the Tribunal's decision in the
case.
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15 Bringing a Motion
What is a motion?
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A motion is a request that the Tribunal make a decision or
issue an order on a matter which is related to the
proceedings on an application or complaint, but which does
not deal directly or completely with the substance of the
application or complaint. For example, a participant may make
a motion to amend its application or complaint, or to ask the
Tribunal to conduct all or part of the oral proceeding in
private in order to preserve the confidentiality of certain
information. Another type of motion is one which asks the
Tribunal to adjourn a scheduled oral proceeding. The order or
decision sought on a motion may be procedural in nature
(e.g. a request to extend or abridge time limits),
or it may be final in nature (e.g. a motion to
dismiss an application on the grounds of lack of jurisdiction
or to dismiss a complaint as being frivolous).
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Who can make a motion?
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Any participant in a proceeding may make a motion.
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When can a motion be made?
|
A motion can be made at any time before the Tribunal issues
its decision on an application or complaint, but the person
making the motion should give the Tribunal as much advance
notice as possible in order to avoid inconvenience and
unnecessary delay.
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How to make a motion
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A motion which is made before the Tribunal proceeding
commences must be in writing, and must set out the nature of
the order which is requested (e.g. "an order
amending the applicant's application to read as
follows...") and the reasons why the motion is being
made.
A motion which is made during an oral proceeding may be made
orally (e.g. to request an adjournment due to
unforeseen circumstances). The person making the motion will
be required to state the reasons for which the motion is
being made.
A motion which is made after the conclusion of an oral
proceeding but before the decision is rendered must be made
in writing. It should set out the nature of the order
requested (e.g. "an order to reopen the oral proceeding
to enable the Tribunal to hear new evidence which was not
available previously...").
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What happens when a motion is made
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When it receives a motion, the Tribunal will ordinarily give
all of the other participants in the proceeding an
opportunity to state their views as to whether or not the
motion should be granted, and the reasons for their position.
The Tribunal will consider the views presented, decide
whether or not to grant the motion, and notify all of the
participants accordingly.
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16 Adjournments and Postponements
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The Tribunal is entitled to adjourn or postpone a proceeding
at any time (see par. 17(j) of the Act).
Due to the difficulties in scheduling hearing dates, the
Tribunal will only grant adjournments and postponements when
strong justification for doing so exists.
A participant who wishes to obtain a postponement or
adjournment of an oral proceeding must specify the reasons
for the request. Normally, a request for a postponement or
adjournment should be made in writing, in advance of the
scheduled date for the commencement of the oral proceeding.
If circumstances do not permit the request to be made in
advance, it may be presented orally during the course of the
hearing.
The Tribunal may canvass the views of the other participants
to the proceeding before making a decision as to whether or
not it will grant the postponement or adjournment.
If the reason for the adjournment could reasonably have been
anticipated by the participant seeking the adjournment, and
the adjournment will result in inconvenience or increased
expense to any other participant to the proceeding, the
Tribunal may order the participant seeking the adjournment to
pay the costs of the adjournment.
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17 Filing of Documents
Documents filed before an oral proceeding
Regs subs. 15(1)
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Certification proceedings
If a participant wishes to draw the Tribunal's attention
to a document, a copy of the document should be provided to
the Tribunal and the other participants no less than 14
calendar days prior to the oral proceeding. If the document
is pertinent to the issues before the Tribunal, the Registrar
will add it to the Tribunal's case file and to the
"List of Pertinent Documents" that is provided to
all participants prior to the oral proceeding. A participant
wishing to obtain copies of any of the documents in the
Tribunal's case file should contact the Registrar.
Documents may also be reviewed at the Tribunal's offices.
Anyone wishing to do so should contact the Registrar.
Other types of proceedings (complaints, applications for
declarations etc.)
If a participant wishes to draw the Tribunal's attention
to a document, six copies of the document should be provided
to the Tribunal no less than 14 calendar days prior to
the oral proceeding. Upon receipt of the document, the
Tribunal will provide a copy to any other parties to the
proceeding.
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Documents filed during an oral proceeding
Regs subs. 15(2)
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Anyone wishing to file a document during the course of an
oral proceeding should bring six copies for the use of the
Tribunal plus a sufficient number of copies for each of the
other participants involved in the proceeding, including the
interpreter and any witness, if applicable.
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Documents in a written proceeding
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When the Tribunal decides a matter before it on the basis of
written submissions, participants will be advised in advance
of the deadline for submitting any document they wish the
Tribunal to consider.
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18 Witnesses
When are witnesses required?
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A participant in a proceeding may wish to call one or more
witnesses to give evidence regarding facts which are in
dispute. Witnesses can only give evidence as to facts within
their personal knowledge and must limit their opinions to
matters within their experience or expertise.
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How to ensure that a witness attends the proceeding
Regs subs. 24(1)
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The Tribunal has the power to summon and enforce the
attendance of any person whose testimony the Tribunal
believes is necessary to its proceedings, and to compel the
person to give oral or written evidence on oath and to
produce documents (see par. 17(a) of the
Act). This power is exercised by means of
"summons to witness" issued by the Tribunal, which
instructs a specific person or representative of an
organization to attend the oral proceeding on a prescribed
date and to bring with them the documents specified on the
summons.
There are two circumstances in which a witness may be
compelled to attend a Tribunal proceeding:
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because the Tribunal has issued a summons to the witness
on its own initiative; or
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because the Tribunal has issued a summons to the witness
at the request of a participant to the proceeding.
A participant who wishes to request that the Tribunal issue a
summons to witness must provide the Tribunal with the
following information:
- the Tribunal case file number of the proceeding to which the summons
relates;
- the name and address of the person to be summoned;
- the date on which the person is required to appear;
- the reason for the summons
- the details of any documents or items that the person being summoned
must bring with them to the oral proceeding and how the documents or items are
relevant to the proceeding.
Participants may use the Form provided by the Tribunal to request that
a summons be issued.
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Where to send the request
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A request that the Tribunal issue a summons should be sent
to:
Canadian Artists and Producers Professional Relations
Tribunal
1st Floor West
240 Sparks Street
Ottawa, Ontario K1A 1A1
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What happens after a request has been made
Regs subs. 24(3)
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Upon receipt of this information, the Tribunal will consider
the request and, if appropriate, will prepare a summons to
witness and send it to the participant who requested the
summons. It is the responsibility of the participant who
requested the summons to witness to arrange for personal
service of the summons on the person to whom it is directed,
at least seven days before the person is required to appear,
and to provide proof of service to the Tribunal.
"Personal service" is the process of delivering a
summons or other document to the person to whom it is
addressed. The use of professional process servers for
service of a summons to witness is recommended.
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Witness fees and expenses
Regs subs. 24(4)
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The participant who has requested that a particular witness
be summoned to appear before the Tribunal is responsible for
paying that person's expenses (i.e. transportation and
living expenses and a daily attendance fee).
The amount of the witness fee and expenses depends on the
province in which the oral proceeding is being held, since it
is based on the fees and expenses payable to a witness in a
civil proceeding in the superior court of that province.
Tribunal staff can assist participants in determining the
witness fees and expenses which apply to a specific
proceeding.
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What happens if the oral proceeding is postponed
Regs subs. 24(6)
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If an oral hearing is adjourned and the subsequent date is
not indicated during this time, the person who applied for
the summons must notify the person who is under summons of
the new date. This must be done either at least five days
before the person summoned is to attend, or if the Tribunal
has given less than five days notice of the reconvening,
within a notice period that is fair and reasonable in the
circumstances.
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Affirmation of witnesses
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The Tribunal may require that a witness make a solemn
affirmation prior to giving his or her evidence. The
following affirmation will be administered by the Registrar:
"Do you solemnly affirm that the evidence to be given by
you to this Tribunal shall be the truth, the whole truth and
nothing but the truth?"
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Exclusion of Witnesses
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At the request of any participant in the proceeding, the
Tribunal has the discretion to exclude from the hearing room
any witness who has not yet given his or her evidence. The
purpose of such exclusion is to prevent a witness from
"tailoring" his or her evidence after hearing the
evidence of earlier witnesses. Excluded witnesses must not
discuss evidence among themselves or with others who have
been present in the hearing. A witness who has completed
giving his or her evidence is permitted to remain in the
hearing room for the remainder of the proceeding.
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19 Affidavits
What is an affidavit?
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An affidavit is a written declaration or statement of facts,
confirmed by the oath or affirmation of the person who is
making the affidavit in the presence of an individual who has
the authority to administer oaths and affirmations.
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When is an affidavit used?
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Although the Act gives the Tribunal the power to
accept affidavit evidence, it will do so only in exceptional
circumstances. Any participant wishing to rely on affidavit
evidence should contact the Registrar well in advance to
obtain the Tribunal's direction.
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Content of an affidavit
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An affidavit must be in writing, and must contain the
following information:
-
the name of the proceeding to which it relates;
-
the name and address of the person making the affidavit;
-
the title or position of the person making the affidavit;
-
a statement that the person making the affidavit swears or
affirms that the contents of the affidavit are true to the
best of his or her knowledge;
-
a concise statement of each of the facts relevant to the
case (each fact should be set out in a separate paragraph,
and should be very explicit).
Persons wishing to file an affidavit may use the Form
provided by the Tribunal for this purpose.
The affidavit must be sworn or affirmed and signed in the
presence of an individual who has the authority to administer
oaths and affirmations (e.g. a lawyer or a person authorized
by the Tribunal to administer oaths and affirmations).
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Where to send affidavits
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Affidavits should be sent to:
Canadian Artists and Producers Professional Relations
Tribunal
1st Floor West
240 Sparks Street
Ottawa, Ontario K1A 1A1
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20 Evidence
Admissibility
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The Tribunal has the discretion to accept any evidence and
information that it sees fit, whether or not the evidence is
admissible in a court of law (see par. 17(c) of
the Act). The Tribunal will determine the form in
which it will receive evidence or information (for example,
through sworn oral testimony or by affidavit).
The primary concern of the Tribunal with respect to the
admissibility of any particular piece of evidence is whether
it is relevant to the proceeding.
Once it decides to admit a particular piece of evidence, the
Tribunal will decide what weight it will give to that
evidence in reaching its eventual decision.
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Circumstances when evidence is not required
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Judicial notice (subs. 19(4) of the Act)
Judicial notice is a process by which the Tribunal recognizes
the existence and truth of certain facts which relate to a
matter before it, without the necessity of having those facts
proved by means of evidence or testimony. Facts which may be
judicially noticed include matters which are common knowledge
(e.g. orchestras are composed of musicians; the National Arts
Centre is located in Ottawa), matters which are documented in
dictionaries, almanacs, reference works, case reports,
federal and provincial statutes and regulations, and
certificates signed by the Minister of Labour or officials of
the Federal Mediation and Conciliation Service.
Specialized Knowledge (subs. 19(5) of the Act)
When the Tribunal intends to take notice of any facts or
information that are within its specialized knowledge, it
will notify the participants in the proceedings of this
intention. The participants will be provided with an
opportunity to make representations to the Tribunal with
respect to this type of facts or information.
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21 Enforcement of Tribunal Decisions
Filing a Tribunal order in the Federal Court
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If it appears that an artist, artists' association or
producer has failed or is unlikely to comply with an order
issued by the Tribunal, the Tribunal has the power to file
that order with the Federal Court of Canada. Once the
Tribunal has filed the order, it is registered by the Court
and is treated as if it is a judgment of the Court. As a
consequence, failure to comply with the order then becomes a
contempt of Court and an individual or organization which
fails to comply with the order could be prosecuted for
contempt of court.
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Procedure for filing a Tribunal order in the Federal Court
Regs subs. 49(1) & s.8
Regs subs. 49(2)
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The Tribunal has the authority to file its orders in the
Federal Court (see s. 22 of the Act). When one
of the parties named in a Tribunal order is of the view that
there is reason to believe that the Court's enforcement
mechanisms will be required to ensure compliance by another
party, it should apply in writing to the Tribunal asking that
the order be filed in the Federal Court. The application
should contain the following information:
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the name, address, telephone number and fax number, if
any, of the applicant;
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the name, address telephone and fax number of the
applicant's authorized representative, if any;
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the Tribunal file number in respect of which the
determination or order was issued;
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a copy of the order which the applicant wishes the
Tribunal to file in Federal Court;
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the reasons why the applicant believes that the order
should be filed in the Federal Court including:
(a) whether there is a failure or likelihood of failure
by the person named in the order to comply with it,
and
(b) filing the order would serve a useful purpose;
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the signature of the applicant or the applicant's
authorized representative;
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the date of the application.
If the application states that a person named in the
determination or order has failed or likely to fail to comply
with it, the applicant must serve a copy of the application
on the person.
The application must be accompanied by all relevant
documents. Applicants may use the Form provided by the
Tribunal for the purpose of applying to have a Tribunal order
filed in the Federal Court.
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Where to send the application
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An application for the filing of a Tribunal decision in the
Federal Court should be sent to:
Canadian Artists and Producers Professional Relations
Tribunal
1st Floor West
240 Sparks Street
Ottawa, Ontario K1A 1A1
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What happens after an application is received
Regs s. 50, s. 22 & s. 9
Regs s. 51, s. 10 & s. 14
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Upon receipt of an application to file one of its orders in
Federal Court, the Tribunal will notify the other parties to
the order and provide them with an opportunity to make
representations on the issue.
The applicant may also reply to the other party's
response and provide them a copy of the reply (i.e. in
person, registered mail, electronic means with a proof of
receipt, or any other manner approved by the Tribunal). The
reply must include the following:
-
the Tribunal file number of the application;
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a full reply to any allegations or issues raised in
response and full particulars of any additional relevant
facts on which the applicant intends to reply;
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the signature of the applicant or the applicant's
authorized representative; and
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the date of filing of the reply.
All documents relevant to a reply must be attached to the
reply or filed in a manner authorized by the Tribunal.
The Tribunal may appoint one of its members or staff to meet
with the parties in an effort to resolve the difficulties
which led to the filing of the application.
The Tribunal will decide whether there is an indication that
the order will not be complied with or whether any useful
purpose would be served by filing the order with the Court
and if satisfied that either of these conditions are met,
will take the steps necessary to file the order in the
Federal Court Trial Division Registry. Once an order is
filed, it becomes the responsibility of the court to enforce
compliance with its terms.
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22 Enforcement of the Act (Consent to Prosecute)
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The violation of, or failure to comply with, either orders of
the Tribunal or certain provisions of the Status of the
Artist Act (for example, giving evidence
[par. 17(a)], deduction or remittance of
association dues [s. 44]) constitutes an offence for
which the individual committing the offence may be prosecuted
by the Crown or by a private person. However, before any
prosecution can be instituted in respect of such offences,
the written consent of the Tribunal must be obtained.
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How to apply for consent to prosecute
Regs subs. 51(1) & s. 8
Regs subs. 51(2) & s. 14
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An application for consent to prosecute must be made in
writing and contain the following information:
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the name, address and telephone and fax number, if any, of
the applicant;
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the name, address telephone and fax number of the
applicant's authorized representative, if any;
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the name, address and telephone and fax number of the
individual, producer, producers' association, artist
or artists' association against whom the prosecution
is to be brought ("the respondent");
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a reference to the sections of the Act which the
respondent is alleged to have contravened, or to the
Tribunal order with which the respondent is alleged to
have failed to comply;
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a full description of the events, circumstances and
actions taken by the respondent which are alleged to
contravene or fail to comply with the Act or the
Tribunal order;
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the date on which the applicant first knew of the action
or circumstances which lead to the application for consent
to prosecute;
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the signature of the applicant or the applicant's
authorized representative;
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the date of the application.
The applicant must serve a copy of the application for
consent to prosecute on the person in respect of whom consent
to prosecute is sought.
The application must accompanied by all relevant documents.
Applicants may use the Form provided by the Tribunal for the
purpose of making an application for consent to prosecute.
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Where to apply
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Applications for consent to prosecute should be sent to:
Canadian Artists and Producers Professional Relations
Tribunal
1st Floor West
240 Sparks Street
Ottawa, Ontario K1A 1A1
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What happens after an application is received
Regs s. 53, s. 9 & s. 14
Regs s. 54, s. 10 & s. 14
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Acknowledgement of receipt
Upon receiving an application for consent to prosecute, the
Tribunal will send the applicant an acknowledgement of
receipt. An officer of the Tribunal will review the
application for completeness and will contact the applicant
if any of the required information is missing or incomplete.
Consideration of the application
Once the application is complete, the Tribunal will send a
copy of the application to the respondent together with a
request for a response within a specified period of time.
The applicant will be provided with an opportunity to comment
on any response provided by a respondent.
The guiding principle to be applied by the Tribunal in
determining applications for consent to prosecute will be the
best interests of professional relations.
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23 Tribunal Records and Confidentiality
Case records
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The official case record of the Tribunal consists of:
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the original application, complaint, reference or other
document which commenced the proceeding;
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a copy of any notice of oral proceeding published or sent
to the parties;
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copies of any answers, replies or interventions filed in
the proceeding;
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a copy of any interim orders made by the Tribunal related
to the proceeding;
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all of the documentary material filed with the Tribunal;
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a copy of any report prepared for the Tribunal with
respect to the subject matter of the proceeding;
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a copy of any audiotape or transcript of evidence given at
the oral proceeding;
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the decision or order of the Tribunal and, if reasons for
the decision have been given, an original, signed copy of
the reasons for decision, including any dissent.
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Access to case records
Regs subs. 20(1)
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The participants in a proceeding and the public have the
right to view the Tribunal's official case records, with
the exception of any documents which have been determined by
the Tribunal to be confidential. Persons wishing to consult
or obtain copies the Tribunal's official records should
contact the Registrar at (613) 996-4052.
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Confidentiality
Regs subs. 20(2)
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While the Tribunal's policy is to encourage openness and
accessibility to documents relating to its proceedings, the
Tribunal recognizes that there are times when a document in
its possession should not be subject to public disclosure.
For example, membership lists filed by artists'
associations in the course of seeking certification will be
treated as confidential by the Tribunal.
Any participant to a proceeding who wishes to have the
Tribunal treat a particular document in confidence should
identify that document and give reasons why confidentiality
is required. The Tribunal will generally recognize the
following reasons for confidentiality:
-
the information consists of financial, commercial,
scientific or technical material that is consistently
treated in a confidential manner by the participant
supplying it to the Tribunal;
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the disclosure of the information could reasonably be
expected to result in a significant financial loss or gain
to, or prejudice the competitive position of, the
participant supplying it to the Tribunal.
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24 Judicial Review
Privative clause
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The operations of the Canadian Artists and Producers
Professional Relations Tribunal are protected by a privative
clause which limits judicial review of the Tribunal's
decisions and orders to certain types of error (see
s. 21 of the Act).
Jurisdiction to hear and determine applications for judicial
review made in respect of the Tribunal rests with the Federal
Court of Appeal Federal Court Act (R.S.C. 1985, c.
F-7), par. 28(1)(o)].
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Grounds for review
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Applications to the Court for judicial review of Tribunal
decisions and orders may be made on the grounds that the
Tribunal:
-
acted without jurisdiction, acted beyond its jurisdiction
or refused to exercise its jurisdiction;
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failed to observe a principle of natural justice,
procedural fairness or other procedure that it was
required by law to observe; or
-
acted, or failed to act, by reason of fraud or perjured
evidence.
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Applications for judicial review
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Applications for judicial review of a Tribunal decision or
order must be made in accordance with the Federal Court
Act and the Federal Court Rules.
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25 General Matters
Hours of operation
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The Tribunal's hours of operation are Monday to Friday
from 8:00 a.m. to 5:00 p.m., Eastern Time.
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Official languages
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The Tribunal provides service in both English and French.
Decisions and orders of the Tribunal are available in both
official languages.
In order to minimize operational and oral proceeding costs,
correspondence between the Tribunal and individual parties
will not ordinarily be translated. Simultaneous translation
at oral proceedings will only be provided when the
participants indicate that such service is necessary. When
scheduling oral proceedings, the Registrar will contact the
participants to determine whether simultaneous translation is
required for the oral proceeding.
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Receipt of documents
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The Tribunal will accept documents delivered to its offices
by personal delivery, registered or ordinary mail or courier.
It is the responsibility of the sender to ensure that the
document is received by the Tribunal within any time period
specified by the Tribunal or in the Act. Documents may be
faxed to the Tribunal, provided that an original copy is also
immediately sent to the Tribunal by mail.
The address of the Tribunal is:
Canadian Artists and Producers Professional Relations
Tribunal
1st Floor West
240 Sparks Street
Ottawa, Ontario K1A 1A1
Telephone: (613) 996-4052
1-800-263-ARTS (2787)
Facsimile: (613) 947-4125
E-mail address: info@capprt-tcrpap.gc.ca
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Communications with the parties and interveners
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The Tribunal will communicate directly with the participants
on matters related to the proceeding in which they are
involved, unless it receives a written direction from a
participant instructing the Tribunal to communicate only with
its counsel or agent.
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Information available on the Internet
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The full text of the Status of the Artist Act, the
Tribunal's decisions, current public notices, notices of
hearings as well as the names of contacts may be found on the
Tribunal's Home Page on the Internet at http://www.capprt-tcrpap.gc.ca.
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Canadian Artists and Producers Professional Relations Tribunal
Procedural Regulations
PART 1
INTERPRETATION
1. The following definitions apply in these Regulations.
"Act" means the Status of the Artist Act. (Loi)
"applicant" means an artist, an artists' association or a producer who has
filed an application. (requérant)
"participant" means a party or an intervener in a proceeding.
(participant)
"Returning Officer" means an individual appointed by the Tribunal under section
31 to conduct a representation vote. (directeur du scrutin)
PART 2
GENERAL PROVISIONS
Application
2. (1) Subject to subsection (2), these Regulations apply in
respect of all proceedings before the Tribunal that are pending on the day on
which these Regulations come into force.
(2) Any proceeding commenced or document filed with the Tribunal before the
coming into force of these Regulations is not invalid merely because the
commencement or filing does not conform to the requirements of these
Regulations.
Calculation of Time
3. Unless otherwise stated by the Tribunal, time limits and
deadlines must be calculated using calendar days.
Holidays
4. Whenever a time limit or deadline calculated under these
Regulations falls on a Saturday, Sunday or statutory holiday, the time limit or
deadline is extended to the next working day.
Orders
5. (1) Any member of the Tribunal may sign an order of the
Tribunal.
(2) Unless otherwise stated in the order, an order takes effect on the day on
which it is issued.
Matters Not Provided For
6. If a procedural matter that is not provided for by these
Regulations arises, the Tribunal may take any action that is consistent with
these Regulations and the Act and that it considers necessary to resolve the
matter.
Dispensing with Compliance
7. The Tribunal may, of its own motion or on application,
excuse a participant from complying with any provision of these Regulations in
order to ensure that a proceeding is dealt with informally and expeditiously.
Requirements for Applications, Complaints and Questions
8. (1) Subject to section 24, an application, complaint or
question must be in writing, be filed with the Tribunal and include the
following information:
(a) the applicant's or complainant's name, address, telephone number
and fax number, if any;
(b) the name, address, telephone number and fax number of the
applicant's or complainant's authorized representative, if any;
(c) the grounds on which the applicant or complainant relies and full
particulars of the facts relevant to the application, the complaint or, if
applicable, the question;
(d) the determination or order sought;
(e) the signature of the applicant or complainant, or of their
authorized representative; and
(f) the date of the application, complaint or question.
(2) All documents relevant to an application, complaint or question must be
attached to the originating document or filed in any other manner authorized by
the Tribunal.
Requirements for Responses
9. (1) A response to an application, complaint or question
must be in writing, be filed within the period referred to in paragraph
17(1)(a) and include the following information:
(a) the participant's name, address, telephone number and fax number,
if any;
(b) the name, address, telephone number and fax number of the
participant's authorized representative, if any;
(c) the Tribunal file number of the proceeding to which the response
relates;
(d) a full response to any allegations or issues raised in the
proceeding and full particulars of any additional relevant facts on which the
participant intends to rely;
(e) the participant's position with respect to the determination or
order sought by the applicant or complainant;
(f) the signature of the participant or the participant's authorized
representative; and
(g) the date of the response.
(2) All documents relevant to a response must be attached to the response or
filed in any other manner authorized by the Tribunal.
Requirements for Replies
10. (1) A reply to a response must be in writing, be filed
within the period referred to in paragraph 17(1)(b) and include the
following information:
(a) the Tribunal file number of the proceeding to which the reply
relates;
(b) a full reply to any allegations or issues raised in the response
and full particulars of any additional relevant facts on which the applicant
intends to rely;
(c) the signature of the applicant or complainant, or of their
authorized representative; and
(d) the date of the reply.
(2) All documents relevant to a reply must be attached to the reply or filed in
any other manner authorized by the Tribunal.
Requirements for Applications for Leave to Intervene
11. (1) An application for leave to intervene under subsection
19(3) of the Act must be in writing, be filed within the period referred to in
paragraph 17(1)(a) and include the following information:
(a) the name, address, telephone number and fax number, if any, of the
applicant for leave to intervene;
(b) the name, address, telephone number and fax number of the
authorized representative, if any, of the applicant for leave to intervene;
(c) the Tribunal file number of the application, complaint or question
that is the subject of the application for leave to intervene;
(d) the grounds for intervention and the interest of the applicant for
leave to intervene in the matter;
(e) the contribution that the applicant for leave to intervene expects
to make to the application, complaint or question if granted leave;
(f) the signature of the applicant for leave to intervene or of their
authorized representative; and
(g) the date of the application for leave to intervene.
(2) All documents relevant to an application for leave to intervene must be
attached to the application or filed in any other manner authorized by the
Tribunal.
(3) At the request of the Tribunal, the applicant or complainant in respect of
the original proceeding must file a response to the application for leave to
intervene, in accordance with section 9.
(4) At the request of the Tribunal, the applicant for leave to intervene must
file a reply to the response, in accordance with section 10.
(5) If, in the opinion of the Tribunal, the intervention would further the
objectives of the Act, the Tribunal may grant leave to intervene, subject to
any conditions that it considers appropriate.
(6) If the leave to intervene includes the right to respond to the application,
complaint or question, the response must be prepared in accordance with section
9.
Electronic Documents and Signatures
12. For the purposes of these Regulations, when authorized in
writing by the Tribunal,
(a) a document that is in electronic format is considered to be in
writing; and
(b) signatures may be electronic.
Notice of Constitutional Question
13. (1) If a participant intends to raise a question about the
constitutional validity, applicability or operability of a statute or
regulation, the participant must, as soon as the circumstances giving rise to
the question become known and, in any event, at least 10 days before the
question is to be argued,
(a) serve a notice of a constitutional question on the other
participants, the Attorney General of Canada and the attorney general of each
province; and
(b) file a copy of the notice with the Tribunal.
(2) The notice must be in the form required by the Federal Court Rules,
1998.
Filing and Service of Documents
14. (1) An application or other document that is required by
these Regulations to be filed with the Tribunal or served on any person must be
filed or served
(a) by handing it to the recipient in person;
(b) by mailing it by registered mail to the address for service, as
described in subsection (2);
(c) by transmitting it through electronic means, including a fax, that
provides a proof of receipt of the document; or
(d) by doing so in any other manner that the Tribunal authorizes.
(2) In paragraph (1)(b), "address for service" means
(a) in the case of the Tribunal, the address of its offices; and
(b) in the case of any other person, the address of the person that
appears in any notice issued by the Tribunal in the proceeding in respect of
which service is being made or, if no address appears in the notice, the latest
known address of the person.
(3) A document that is transmitted by electronic means in accordance with
paragraph (1)(c) must include the following information:
(a) the name, address, telephone number, fax number and, if
applicable, the electronic mail address of the person transmitting the document;
(b) the name, address, telephone number, fax number and, if
applicable, the electronic mail address of the person to whom the document is
being transmitted;
(c) the date and time of transmission;
(d) the total number of pages being transmitted; and
(e) the name and telephone number of a person to contact in the event
of problems in its transmission.
Filing of Documents for an Oral Hearing
15. (1) If, before an oral hearing, a participant intends to
draw the Tribunal's attention to a document, the participant must file the
document with the Tribunal and serve a copy on all other participants, not less
than 14 days before the hearing.
(2) If a participant files a document in the course of an oral hearing, the
participant must file the document and six copies with the Tribunal and must
provide a copy to each of the other participants, if any, and to any witness or
interpreter.
Date of Filing
16. The date of filing of an application or other document
with the Tribunal is
(a) in the case of a document sent by registered mail, the day on
which it is mailed; and
(b) in any other case, the day on which the document is received by
the Tribunal.
Time for Responding, Intervening or Replying
17. (1) Unless the Tribunal directs otherwise,
(a) a response or an application for leave to intervene in a
proceeding other than an application for certification must be filed within 15
days after notice, sent by the Tribunal, is received in respect of an
application, complaint or question; and
(b) a reply must be filed within 10 days after notice, sent by the
Tribunal, is received in respect of the response.
(2) An application for an extension of the period within which to respond,
apply for leave to intervene or reply must be in writing and
set out the grounds on which it is based.
Incomplete Applications or Documents
18. If an application or other document is incomplete, the
Tribunal must notify the participant who filed the application or other
document of its deficiencies. The application or other document will not be
considered or acted on unless it is completed within the period specified by
the Tribunal.
Production of Documents
19. (1) Subject to section 20, a participant may, at any time
before a hearing, request that another participant produce for inspection any
document relevant to the proceeding.
(2) If a participant fails to produce the requested document within 10 days
after receiving the request, the requesting participant may apply to the
Tribunal for an order requiring its production.
(3) If a participant fails to comply with a request made under subsection (1)
or an order issued under subsection (2), the Tribunal may order the participant
to pay the costs of any adjournment of the proceedings that results from the
failure.
Confidentiality of Documents
20. (1) Subject to subsections (2) to (4), documents filed in
a proceeding must be placed on the Tribunal's case record and be available to
the public.
(2) Of its own initiative or on motion, the Tribunal may declare that a
document that has been filed be treated as confidential and may limit access to
the document to those persons whom the Tribunal designates, subject to any
conditions that it considers appropriate.
(3) For the purposes of subsection (2), a "document" includes
(a) financial, commercial, scientific or technical material that is
consistently treated as confidential by the participant filing it with the
Tribunal; and
(b) information whose disclosure could reasonably be expected to
result in a significant financial loss or gain to, or prejudice to the
competitive position of, the participant filing it with the Tribunal.
(4) Despite any other provision of these Regulations, the Tribunal must not
disclose evidence that could, in the Tribunal's opinion, reveal membership in
an artists' association, opposition to the certification of an artists'
association or the wish of any artist to be represented, or not to be
represented, by an artists' association, unless the Tribunal considers that the
disclosure would further the objectives of the Act.
Evidence of Artists' Wishes
21. The Tribunal may receive evidence, in order to establish
whether any artists wish to be represented by a particular artists'
association, in any circumstances in which the Tribunal considers that to
receive it would further the objectives of the Act.
Consolidation and Severance
22. (1) The Tribunal may direct that any proceedings before it
be consolidated or severed.
(2) If the Tribunal directs that proceedings be consolidated, the Tribunal must
issue directions on whether the proceedings will be combined or heard together,
and may issue any further directions that it considers appropriate in respect
of the conduct of the consolidated proceeding.
(3) If two or more proceedings have been consolidated and the Tribunal
considers that their continued consolidation would not be conducive to
furthering the objectives of the Act, the Tribunal may, after giving the
participants the opportunity to be heard, order that the proceedings be severed.
Notice of Oral Hearing
23. (1) Unless the Tribunal directs otherwise, the Registrar
of the Tribunal must give to the participants at least 21 days notice of an
oral hearing.
(2) If a participant is notified of a hearing and fails to appear, the Tribunal
may proceed and dispose of the matter in the participant's absence.
Summonses
24. (1) In the case of an oral hearing, a participant may
apply in writing to the Tribunal, before the start of the hearing or at the
hearing, but in any case as soon as the circumstances giving rise to the
application become known to the participant, for the Tribunal to issue a
summons.
(2) The application for summons must set out
(a) the Tribunal file number of the proceeding to which the summons
relates;
(b) the name and address of the person to be summoned;
(c) the day on which the person is required to appear;
(d) the reasons for the summons; and
(e) the details of any documents or items that the person being
summoned must bring with them to the oral hearing, and how the documents or
items are relevant to the proceeding.
(3) The participant who applies for a summons must serve the summons directly
on the person to be summoned at least seven days before the person is required
to appear, unless the Tribunal directs otherwise.
(4) The participant who applies for a summons is responsible for paying the
witness's expenses and fees, in accordance with section 64 of the Act.
(5) A person who is summoned to an oral hearing must attend at the time and day
specified as well as each day of the hearing, unless the Tribunal directs
otherwise.
(6) If an oral hearing is adjourned and the date of its reconvening is not
indicated at the time of the adjournment, the person who applied for the
summons must notify the person who is under summons of the date of the
reconvening
(a) at least five days before the person summoned is to attend; or
(b) if the Tribunal has given less than five days notice of the
reconvening, within a notice period that is fair and reasonable in the
circumstances.
PART 3
CERTIFICATION PROCEEDINGS
Application for Certification
25. An application for certification must be made in
accordance with section 8 and must, in addition to the requirements of that
section, include the following information:
(a) a general description of the sector for which certification is
sought;
(b) an estimate of the number of professional freelance artists
working in the proposed sector;
(c) an estimate of the number of members of the applicant who work in
the proposed sector;
(d) a current copy of the applicant's membership list certified by the
applicant's authorized representative indicating
(i) the members' full names and current addresses, and
(ii) if the applicant also represents individuals who do not work within the
proposed sector, a list of those members who work within the proposed sector;
(e) a copy of any scale agreement in force affecting the proposed
sector;
(f) a copy of the applicant's constitution and by-laws certified by
its authorized representative; and
(g) evidence that the membership authorizes the applicant to apply for
certification.
Public Notice
26. (1) The Tribunal must publish a notice of the application
for certification in the Canada Gazette, Part I, or through any other
means that the Tribunal considers appropriate.
(2) The notice must indicate the name of the applicant, a description of the
proposed sector, and the period for filing competing applications and
expressions of interest from artists, artists' associations, producers and
other interested persons in respect of the proposed sector.
(3) The period referred to in subsection (2) is at least 30 days from the date
of publication of the notice.
Notice of Intervention as of Right
27. (1) An artist, artists' association or producer that
intervenes under subsection 26(2) or 27(2) of the Act must file a notice of
intervention with the Tribunal.
(2) A notice of intervention must be filed within the period specified in the
notice published under subsection 26(1), be in writing and include
(a) the name, address, telephone number and fax number, if any, of the
intervener;
(b) the name, address, telephone number and fax number of the
intervener's authorized representative, if any;
(c) the Tribunal's file number indicated in the notice referred to in
subsection 26(1);
(d) the signature of the intervener or their authorized
representative; and
(e) the date of filing of the notice of intervention.
(3) At the request of the Tribunal, the intervener must file the grounds for
the intervention and their interest in the matter.
Applicant's Response
28. At the request of the Tribunal, the applicant for
certification must, in accordance with section 9, file a response to the
grounds for intervention filed by the intervener.
Reply of Intervener
29. At the request of the Tribunal, the intervener must, in
accordance with section 10, file a reply to the applicant's response.
Subsequent Application for Certification
30. (1) If the Tribunal rejects an application to certify an
artists' association, the same artists' association may not submit a new
application for certification in respect of the same sector, or what the
Tribunal considers to be substantially the same sector, until six months after
the day on which the previous application was rejected.
(2) Despite subsection (1), the Tribunal may, of its own motion or on
application of the artists' association, abridge the period referred to in that
subsection.
PART 4
REPRESENTATION VOTES
31. (1) If the Tribunal orders that a representation vote be
taken, the Tribunal must appoint a Returning Officer.
(2) The Returning Officer may give directions to ensure the proper conduct of
the vote and must report the results of the vote to the Tribunal.
(3) The Returning Officer may appoint one or more employees of the Tribunal, as
required, to assist in the conduct of the vote.
PART 5
REVOCATION OF CERTIFICATION
Application for Revocation of Certification
32. An application for the revocation of an artists'
association's certification must be made in accordance with section 8 and must,
in addition to the requirements of that section, include the following
information:
(a) the name of the artists' association that holds the certification
that the applicant seeks to revoke; and
(b) a description of the sector within which the applicant works and
for which the artists' association has been certified.
Notice of Application for Revocation of Certification
33. (1) The Tribunal must provide the affected artists'
association with a copy of the application for revocation of certification.
(2) If the application for revocation of certification is based on subsection
23(2) of the Act, the Tribunal may request that the artists' association adopt
by-laws that do not contravene that subsection.
(3) If an application for revocation of certification is not made within the
period referred to in paragraph 29(1)(b) of the Act, the Tribunal may
dismiss the application.
Response to an Application for Revocation of Certification
34. The affected artists' association may file a response to
an application for revocation of its certification in accordance with section 9.
Applicant's Reply
35. The applicant may file a reply to a response referred to
in section 34 in accordance with section 10.
Subsequent Application for Revocation of Certification
36. (1) If the Tribunal rejects an application for the
revocation of an artists' association's certification, a new application for
revocation in respect of the same sector may not be submitted until six months
after the day on which the previous application was rejected.
(2) Despite subsection (1), the Tribunal may, of its own motion or on
application of an artist or artists' association, abridge the period referred
to in that subsection.
PART 6
JOINT APPLICATION TO CHANGE TERMINATION
DATE OF SCALE AGREEMENT
37. A joint application to change the termination date of a
scale agreement must be made in accordance with section 8 and must, in addition
to the requirements of that section, include a copy of all scale agreements
between the parties, whether in force or expired, and any other document that
the Tribunal may require.
PART 7
COMPLAINTS
Filing a Complaint
38. A complaint made under section 53 of the Act must be made
in accordance with section 8 and must, in addition to the requirements of that
section, include the following information:
(a) the name, address, telephone number and fax number, if any, of the
person or organization that is the object of the complaint;
(b) the provision of the Act on which the complaint is based;
(c) the day on which the complainant first knew of the actions or
circumstances giving rise to the complaint;
(d) full particulars of any measures taken by the complainant to
resolve the situation that gave rise to the complaint; and
(e) a description of the remedy sought by the complainant.
Response to a Complaint
39. A person or organization that is the object of a complaint
made under section 38 may file a response to the complaint in accordance with
section 9.
Complainant's Reply
40. A complainant may file a reply to a response referred to
in section 39 in accordance with section 10.
PART 8
DECLARATIONS
Application for Declaration
41. An application for a declaration under section 47 or 48 of
the Act must be made in accordance with section 8 and must, in addition to the
requirements of that section, include the following information:
(a) the name, address, telephone number and fax number, if any, of any
artist, artists' association or producer who, in the opinion of the applicant,
could have an interest in the application;
(b) a reference to the provision of the Act under which the
application is being made; and
(c) the question that the applicant wishes to have the Tribunal
determine or the nature of the declaration that the applicant is seeking.
Response to an Application for Declaration
42. An artist, artists' association or producer who has an
interest in an application for a declaration may file a response in accordance
with section 9.
Applicant's Reply
43. An applicant may file a reply to a response referred to in
section 42 in accordance with section 10.
PART 9
REFERRAL OF QUESTION BY ARBITRATOR OR ARBITRATION BOARD
44. (1) If an arbitrator or arbitration board refers a
question to the Tribunal, the Tribunal must give notice to the parties to the
arbitration.
(2) The parties to the arbitration must file written representations within any
period specified by the Tribunal and must include the following information:
(a) the party's name, address, telephone number and fax number, if any;
(b) the name, address, telephone number and fax number of the party's
authorized representative, if any;
(c) the grounds on which the party relies and full particulars of the
facts relevant to the question;
(d) the determination or order sought;
(e) the signature of the party or the party's authorized
representative; and
(f) the date of filing of the representations.
(3) All documents relevant to a party's representations must be attached to the
representations or filed in any other manner authorized by the Tribunal.
(4) Each party must serve a copy of its representations and documents on the
other party.
(5) Each of the parties must be given the opportunity to respond to the
opposing party's representations within the period specified by the Tribunal.
PART 10
APPLICATIONS FOR REVIEW
Review of a Tribunal Determination or Order
45. (1) Subject to subsection (3), any person affected by a
determination or order of the Tribunal may, within 30 days after the date of
the determination or order, make an application for a review of the
determination or order.
(2) The application must be based on the grounds that
(a) the Tribunal's determination or order contains an error of law or
a serious error of fact; or
(b) the applicant has new information or evidence that was not
available at the time the determination or order was originally made that could
alter the basis on which the determination or order was made.
(3) A certified artists' association or a producer affected by a determination
or order of the Tribunal that establishes a sector may apply for a review of
the determination or order at any time for the purposes of enlarging, modifying
or clarifying the scope of the sector determined.
(4) An application to review a certification order may be made by a certified
artists' association at any time in order to update the artists' association's
certification order for purposes including changes in
(a) the name of the certified artists' association; and
(b) the terminology used to describe the sector.
(5) An application for a review of a determination or an order made by the
Tribunal must be made in accordance with section 8 and must, in addition to the
requirements of that section, include the following information:
(a) the name, address, telephone number and fax number of any artists'
association or producer affected by the determination or order; and
(b) the file number and date of the determination or order that the
applicant wishes to have reviewed.
Notice of Application for Review
46. (1) The Tribunal must publish a notice of an application
for review in the Canada Gazette, Part I, or through any other means
that the Tribunal considers appropriate if the review might result in an
enlargement of the sector.
(2) If an application for review of a determination or an order is not made
within the period referred to in subsection 45(1), the Tribunal may dismiss the
application.
Response to an Application for Review
47. An artist, artists' association or producer who has an
interest in the application may file a response in accordance with section 9.
Applicant's Reply
48. An applicant may file a reply to a response referred to in
section 47 in accordance with section 10.
PART 11
FILING DETERMINATIONS OR ORDERS IN FEDERAL COURT
Application to File in the Federal Court
49. (1) An application made under section 22 of the Act must
be made in accordance with section 8 and must, in addition to the requirements
of that section, include the following information:
(a) the Tribunal file number in respect of which the determination or
order was issued;
(b) a copy of the determination or order that the applicant wishes to
have filed in the Federal Court; and
(c) the reasons that the applicant believes the determination or order
should be filed in the Federal Court, including why the applicant believes that
(i) there is a failure or likelihood of failure by any other person named in
the determination or order to comply with it, and
(ii) filing the determination or order would serve a useful purpose.
(2) If an application states that a person named in the determination or order
has failed or is likely to fail to comply with it, the applicant must serve a
copy of the application on the person.
Response to Application to File in the Federal Court
50. A person named in the determination or order may file a
response to an application filed under section 22 of the Act in accordance with
section 9, and must serve a copy on the applicant.
Applicant's Reply
51. An applicant may file a reply to a response referred to in
section 50 in accordance with section 10, and must serve a copy on the person
named in the determination or order.
PART 12
CONSENT TO PROSECUTE
Application for Consent to Prosecute
52. (1) An application for consent to prosecute under section
59 of the Act must be made in accordance with section 8 and must, in addition
to the requirements of that section, include the following information:
(a) the name, address, telephone number and fax number, if any, of the
person in respect of whom the applicant seeks consent to prosecute;
(b) a reference to the provision of the Act or to the determination or
order of the Tribunal on which the application is based;
(c) a full description of the events and circumstances leading to the
application for leave to prosecute and the actions taken by the person in
respect of whom the applicant seeks consent to prosecute; and
(d) the day on which the applicant first knew of the events,
circumstances or actions that led to the application for consent to prosecute.
(2) The applicant must serve a copy of the application for consent to prosecute
on the person in respect of whom consent to prosecute is sought.
Response to Application for Consent to Prosecute
53. A person in respect of whom an applicant seeks consent to
prosecute may, in accordance with section 9, file a response to an application
filed under section 52, and must serve a copy on the applicant.
Applicant's Reply
54. An applicant may, in accordance with section 10, file a
reply to a response referred to in section 53, and must serve a copy on the
person in respect of whom consent to prosecute is sought.
PART 13
COMING INTO FORCE
55. These Regulations come into force on the day on which they
are registered.
S.C. 1992, c. 33
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