Vol. 141, No. 21 — May 26, 2007
There is a need to thoroughly revise the Rules, in order to make them better suited to the cases before the Tribunal. The need stems from several factors. First, amendments were made to the Competition Act in 2002, creating new processes before the Tribunal, yet the Rules did not reflect these new processes. Second, case management had to be streamlined. Third, more efficient processes were needed to expedite matters before the Tribunal, while ensuring a fair process.
1. Integrate the practice directions in the Rules. The Tribunal had to supplement the Rules amended in 2002 with two practice directions, one dealing with electronic filings and hearings, the other with various proceedings introduced in the 2002 amendments to the Competition Act (S.C. 2002, c. 16). The new Rules incorporate the Tribunal's two practice directions. This means that all the Tribunal's rules of practice and procedure are now found in one document, making it easier for applicants before the Tribunal to obtain the information they need.
2. Develop a comprehensive case management procedure. Whereas in the old Rules various proceedings gave rise to varying case management procedures, all case management is now dealt with in Part 10, in order to avoid both repetition and confusion. Case management is an important component of the new Rules, its objective being to streamline the application process and more clearly delineate the issues.
The new case management rules also afford the Tribunal the flexibility it needs to deal effectively with all cases. Case management will begin as soon as possible, and be tailored to the requirements of each case. The Tribunal will be actively engaged in helping the parties define the issues and prepare their case to expedite the process.
3. Adopt a single procedure for all applications before the Tribunal. The old Rules provided different procedures and timelines for mergers and restrictive trade practices, leading to some confusion. The new Rules provide for a single process for both merger and restrictive trade practices applications, making them easier to follow.
4. Reinstate the relevance standard for discovery. After an attempt (in the 2002 Rules amendments) to have discovery based on documents to be relied upon (reliance standard) as opposed to disclosing all relevant material (relevance standard), the Tribunal has decided to return to the relevance standard for discovery in order to ensure fairness for all parties.
5. Implement procedures to make hearings more efficient. The reliance standard will be kept for pre-hearing disclosure purposes: parties will know in advance what evidence in chief will be used at the hearing, a practice which will decrease significantly the length of the hearings and better focus the issues. In addition, the new Rules allow the Tribunal to make better use of the parties' experts. For example, they may be asked to confer before a hearing in order to answer questions posed by the Tribunal. As well, if the need arises, the Tribunal may appoint its own expert.
6. Provide a more logical structure for the Rules. The new Rules now offer a more structured approach to the various Tribunal procedures. This is reflected by the marked increase in the number of parts, from two to eleven. It is hoped this change will make the Rules clearer and easier to follow.
There are no realistic alternatives. The Competition Tribunal Act gives authority to the Tribunal to make rules regulating its practice and procedure.
These Rules improve the Tribunal's procedures in accordance with its statutory mandate to resolve matters before it as informally and expeditiously as circumstances and considerations of fairness permit. They will benefit the public by making Tribunal proceedings more efficient, thus ensuring cost savings to those who appear before the Tribunal, i.e. Canadian businesses and the Commissioner of Competition.
Efficiency is fostered through provisions that govern new proceedings, case management, pre-hearing and hearing procedures. An important feature recognized in the new Rules is the extensive use the Tribunal makes of electronic technology, for notification, filing and hearing purposes.
The development of the new Rules was undertaken in cooperation with the Tribunal-Bar Liaison Committee. It is composed of Lay and Judicial Tribunal members, Tribunal Legal and Registry staff, and representatives of the Competition Bureau, Justice Canada and the National Competition Law Section of the Canadian Bar Association.
The Liaison Committee appointed a working group in November 2005 to develop a set of draft rules which would be submitted as a recommendation to the Tribunal.
The members of the working group met regularly during a six-month period and produced several drafts of the new Rules which were thoroughly discussed within the various constituencies represented in the Liaison Committee. The final draft of the working group was presented to the judicial members of the Tribunal, who carefully reviewed and revised it.
An overview of the new draft Rules was presented at the Fall 2006 Conference of the Competition Law Section of the Canadian Bar Association.
Compliance with the new Rules does not entail any additional costs. The Registry of the Tribunal will publish the new Rules on its Web site and ensure that the legal and business communities are made aware of the changes in its rules of practice and procedure.
Interested persons may make representations concerning the proposed Rules within 60 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to the Registrar, Competition Tribunal, 90 Sparks Street, Suite 600, Ottawa, Ontario K1P 5B4.
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Information under par. 11(1)(a) of the Act
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COMPETITION TRIBUNAL RULES |
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PART 1 |
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GENERAL |
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INTERPRETATION |
| Interpretation |
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1. The following definitions apply in these Rules. |
"Act"
« Loi » |
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"Act" means the Competition Act. |
"applicant"
« demandeur » |
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"applicant" means a person who files an application under Part VII.1 or Part VIII of the Act or a person who files a reference under section 124.2 of the Act. |
"certified copy"
« copie certifiée » |
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"certified copy" of a document means a copy of the document certified by the Registrar or a person designated by the Registrar. |
"Chairperson"
« président » |
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"Chairperson" means the judicial member designated to be Chairman of the Tribunal under subsection 4(1) of the Competition Tribunal Act. |
"Commissioner"
« commissaire » |
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"Commissioner" means the Commissioner of Competition appointed under subsection 7(1) of the Act. |
"consent agreement"
« consentement » |
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"consent agreement" means an agreement made under section 74.12, 105 or 106.1 of the Act, the terms of which have been agreed on by the parties. |
"counsel"
« avocat » |
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"counsel" means a member of the bar of a province. |
"document"
« document » |
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"document" includes pleadings, affidavits and any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy or portion of that material. |
"electronic hearing"
« audience électronique » |
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"electronic hearing" means a hearing in which documents are provided in an electronic form to the registry and are presented electronically in the course of the hearing. |
"electronic transmission"
« transmission électronique » |
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"electronic transmission" includes transmission
by electronic mail (e-mail) or via the Tribunal
website. |
"file"
« déposer » |
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"file" means to file with the Registrar. |
"intervenor"
« intervenant » |
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"intervenor" means
(a) a person granted leave to intervene by the Tribunal in accordance with rule 46;
(b) an attorney general who intervenes under section 88 or 101 of the Act; or
(c) the Commissioner who intervenes under section 103.2 or subsection 124.2(3) of the Act. |
"originating document"
« acte introductif d'instance » |
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"originating document" means either a notice of application, a notice of reference, or an application for leave under section 103.1 of the Act. |
"paper hearing"
« audience sur pièces » |
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"paper hearing" means a hearing in which documents are provided in paper form to the registry and are presented in paper form in the course of the hearing. |
"party"
« partie » |
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"party" means an applicant or a respondent. |
"person"
« personne » |
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"person" includes a corporation, a partnership and an unincorporated association. |
"reference"
« renvoi » |
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"reference" means a question referred to the Tribunal for determination under section 124.2 of the Act. |
"Registrar"
« registraire » |
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"Registrar" means the Registrar of the Tribunal. |
"registry"
« greffe » |
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"registry" means the Registry of the Tribunal. |
"respondent"
« défendeur » |
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"respondent" means a person who is named as a respondent in a notice of application. |
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RULES APPLICABLE TO ALL PROCEEDINGS |
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Dispensing with Compliance |
| Variance |
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2. The Tribunal may dispense with, vary or supplement the application of any of these Rules in a particular case in order to deal with all matters as informally and expeditiously as the circumstances and considerations of fairness permit. |
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Time Limits |
| Interpretation Act |
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3. Unless otherwise provided in these Rules, time limits under these Rules or under an order of the Tribunal shall be calculated under sections 26 to 30 of the Interpretation Act. |
| Calculating time limits |
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4. (1) If the time for doing an act expires on a
holiday or a Saturday, the act may be done on the next day that is not a holiday or a Saturday. |
| Time limit less than six days |
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(2) If a time limit is less than six days, holidays and Saturdays shall not be included in the calculation of the time limit. |
| Varying time limits |
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5. The time limits prescribed by these Rules may only be shortened or extended by an order or a
direction of a judicial member. |
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Documents |
| Memorandum of fact and law |
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6. Where in these Rules a reference is made to a memorandum of fact and law, the memorandum of fact and law shall contain a table of contents and, in consecutively numbered paragraphs,
(a) a concise statement of fact;
(b) a statement of the points in issue;
(c) a concise statement of the submissions;
(d) a concise statement of the order sought, including any order concerning costs;
(e) a list of the authorities, statutes and regulations to be referred to; and
(f) an appendix, and if necessary as a separate document, a copy of the authorities (or relevant excerpts) as well as a copy of any statutory or regulatory provisions cited or relied on that
have not been reproduced in another party's memorandum. |
| Subpoena |
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7. (1) The Registrar or the person designated by the Registrar may issue a writ of subpoena for the attendance of witnesses and the production of documents. |
| In blank |
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(2) The Registrar may issue a writ of subpoena in blank and the person to whom it is issued shall complete it and may include any number of names. |
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Service of Documents |
| Originating document |
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8. (1) Service of an originating document shall be effected
(a) in the case of an individual, by leaving a certified copy of the originating document with the individual;
(b) in the case of a partnership, by leaving a certified copy of the originating document with one of the partners during business hours;
(c) in the case of a corporation, by leaving a certified copy of originating document with an officer of the corporation or with a person apparently in charge of the head office or of a branch of the corporation in Canada during business hours;
(d) in the case of the Commissioner, by leaving a certified copy of the originating document at the Commissioner's office during business hours; and
(e) in the case of a person referred to in any of paragraphs (a) to (d) who is represented by counsel, by leaving a certified copy of the originating document with the counsel who accepts service of the document. |
| Alternative manner |
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(2) If a person is unable to serve an originating document in a manner described in subrule (1), the person may apply to a judicial member for an order setting out another manner for effecting service. |
| Service of order |
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(3) The person who obtains an order made under subrule (2) shall serve the order on each person named in the originating document. |
Deemed
served |
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9. If a document has been served in a manner not authorized by these Rules or by an order of the Tribunal, the Tribunal may, on motion, order that a document be deemed validly served if it is satisfied that the document came to the notice of the person to be served or that it would have come to that person's notice except for the person's avoidance of service. |
| Other documents |
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10. (1) Service of a document, other than an originating document, on a person who is not represented by counsel shall be effected
(a) in a manner set out in paragraphs 8(1)(a) to (d), except that the copy of the document need not be certified;
(b) by leaving a copy of the document at the usual or last known address of the person;
(c) by sending a copy of the document to the person by facsimile transmission in accordance with subrule (3);
(d) by sending a copy of the document to the person by registered mail or by messenger or courier service, and by obtaining an acknowledgement of receipt signed and dated by the person or by someone on behalf of the person;
(e) by electronic transmission of the document
to the person, if the person agrees and, within
24 hours, sends an acknowledgement of receipt; or
(f) in any other manner that the Tribunal may
order. |
| Person represented |
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(2) Service of a document, other than an originating document, on a person who is represented by counsel shall be effected
(a) in the manner set out in paragraph 8(1)(e), except that the copy of the document need not be certified;
(b) by leaving a copy of the document at the counsel's business address;
(c) by sending a copy of the document to the counsel by facsimile transmission in accordance with subrule (3);
(d) by sending a copy of the document to the counsel by registered mail and by obtaining an acknowledgement of receipt signed and dated by the counsel or by someone on behalf of the counsel;
(e) by electronic transmission to the counsel, who shall within 24 hours send an acknowledgement of receipt; or
(f) in any other manner that the Tribunal may
order. |
Service
by fax |
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(3) A document that is served by facsimile transmission shall include a cover page setting out
(a) the name, address and telephone number of the sender;
(b) the name of the person or the counsel to whom a copy of the document is sent;
(c) the date and time of the transmission;
(d) the total number of pages transmitted, including the cover page; and
(e) the name and telephone number of the person to contact if transmission problems occur. |
| Service by electronic transmission |
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(4) A document that is served by electronic transmission shall be accompanied by an electronic message setting out
(a) the name, address, telephone number and
e-mail address of the sender;
(b) the name of the person or the counsel to whom a copy of the document is sent;
(c) the date and time of the transmission;
(d) the title of the document transmitted; and
(e) the name, telephone number and e-mail address of the person to contact if transmission problems occur. |
Proof
of service |
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11. (1) Proof of service shall be made by an affidavit of service in accordance with the form set out in Schedule 1, for an originating document, or Schedule 2, for a document other than an originating document. |
| By certificate |
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(2) Proof of service of a document other than an originating document can be made by a certificate by a counsel or the person designated by the counsel in accordance with the form set out in Schedule 3. |
Service
by mail |
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(3) In the case of service by registered mail, a signed and dated acknowledgement of receipt shall be attached to the affidavit of service or the counsel's certificate, as the case may be. |
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Filing of Documents |
| Electronic filing |
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12. (1) The parties shall file their documents by electronic transmission. |
| Alternative |
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(2) The Tribunal may allow paper filing and facsimile filing depending on the circumstances. |
| Original document |
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(3) Documents filed by electronic transmission shall constitute the original for both electronic and paper hearings. |
| Paper copies |
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(4) Parties to paper hearings shall provide to the registry five paper copies of the documents filed by electronic transmission within 24 hours after that filing. |
| Filing by intervenor |
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13. An intervenor shall use the same medium (electronic or paper) as the parties. |
| Paper filing |
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14. (1) Subject to subrule (2), only those documents that are printed on 21.5 cm x 28 cm (letter size) paper and that have numbered pages may be filed. |
| Non-standard format |
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(2) A document that is not printed on 21.5 cm x 28 cm paper and that cannot reasonably be converted to that format by the person filing it may be filed in its existing format. |
Facsimile
filing |
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15. (1) If a document is filed by facsimile transmission, it is deemed to be the original. |
Filing by facsimile
not allowed |
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(2) The following documents shall not be filed by facsimile transmission:
(a) an originating document and any documents accompanying it;
(b) a document that is filed in multiple copies; and
(c) a document that contains, to which is appended or that is accompanied by a document containing confidential information. |
| Cover page |
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16. A document filed by facsimile transmission shall include a cover page that satisfies the requirements of subrule 10(3). |
| Filing after 17:00 hours |
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17. A document filed by facsimile transmission after 17:00 hours Ottawa local time is deemed to be filed on the next day that is not a holiday or Saturday. |
| Format for electronic filing |
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18. (1) An electronic version of a document in PDF (Portable Document Format) or any other format allowed by the Tribunal shall be filed in a manner directed by the Registrar. |
| Filed through website |
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(2) All documents filed by electronic transmission shall be electronically time stamped. |
| Filed after 17:00 hours |
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(3) Any document transmitted electronically
after 17:00 hours Ottawa local time is deemed to
be filed on the next day that is not a holiday or
Saturday. |
Irregularity
or defect |
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19. At any time before judgment is given in a proceeding, the Tribunal may draw the attention of a party to any irregularity or defect relating to an electronic version of a document and permit the party to remedy it on any conditions that the Tribunal considers fair. |
| Secure electronic signature |
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20. (1) A statement made under oath or a solemn affirmation filed electronically requires a secure electronic signature. |
| Compliance with legislation |
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(2) A secure electronic signature must comply with the requirements of the Secure Electronic Signature Regulations. |
| Electronic certified copy |
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21. If a document is filed electronically, and a certified copy of the document is requested from the Tribunal, the Tribunal may provide an electronic copy of the document stamped "certified". |
| Public access |
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22. Subject to any confidentiality order under rule 66, the public is entitled to access the documents filed or received in evidence on the public record, in the format in which they were received by the registry. |
| Without confidentiality order |
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23. A party or intervenor who wishes to assert confidentiality in a document to be filed that is not covered by a confidentiality order shall
(a) file a public version of the document that does not include the confidential information;
(b) provide the registry with a version of the document marked "confidential" that includes and identifies the confidential information that has been deleted from the public version filed under paragraph (a); and
(c) bring a motion under rule 66 for an order allowing it to file the confidential version. |
| With confidentiality order |
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24. A party or intervenor who wishes to file a document containing information that has already been made subject to a confidentiality order under rule 66 shall file a public version that does not include the confidential information and a confidential version with each page clearly marked "confidential". The confidential version shall identify the confidential material that has been deleted from the public version and the date of the relevant confidentiality order. |
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Publication of Notice |
| Notice |
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25. (1) The Registrar shall, as soon as the notice of application under Part VIII of the Act has been filed, publish a notice
(a) in the Canada Gazette; and
(b) over a period of two weeks, in at least two
issues of at least two daily newspapers designated by the Chairperson or a judicial member designated by the Chairperson. |
| Content |
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(2) The notice referred to in subrule (1) shall state
(a) that an application for an order has been made to the Tribunal;
(b) the name of each person against whom or in respect of whom the order is sought;
(c) the particulars of the order sought;
(d) that the notice of application and accompanying documents may be examined at the office of the Registrar; and
(e) the date on or before which a motion for leave to intervene must be filed. |
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Discontinuance or Withdrawal |
| Discontinuance |
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26. (1) An applicant may discontinue all or part of an application at any time before a final determination of the application by the Tribunal. |
| Notice of discontinuance |
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(2) The applicant shall serve a notice of discontinuance on each party and on each intervenor and file the notice with proof of service. |
| Withdrawal |
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27. (1) A respondent who has filed a response may withdraw all or part of the response at any time before a final determination of the application by the Tribunal. |
| Notice of withdrawal |
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(2) The respondent shall serve a notice of withdrawal on each party and on any intervenor and file the notice with proof of service. |
| Costs |
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28. If a party discontinues or withdraws from the proceedings, the Tribunal may award costs in accordance with section 8.1 of the Competition Tribunal Act. |
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Hearings |
| Hearings open to the public |
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29. Subject to rule 30, hearings shall be open to the public. |
| In-camera hearings |
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30. (1) A party, an intervenor or a person interested in the proceedings may request that all or a portion of a hearing not be open to the public. |
| Content of request |
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(2) A person who makes the request shall advise the Tribunal of the reasons for the request, including details of the specific, direct harm that would allegedly result from conducting the hearing or a portion of the hearing in public. |
| Power of the Tribunal |
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(3) The Tribunal may, if it is of the opinion
that there are valid reasons for a hearing not to be open to the public, make any order that it deems appropriate. |
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Practice and Procedure |
| Composition of the Tribunal |
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31. Subject to sections 10 and 11 of the Competition Tribunal Act and for the purposes of these Rules, the Tribunal shall consist of one or more members designated by the Chairperson, at least one of whom is a judicial member. |
| Case record in electronic format |
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32. The original and official case record of an electronic hearing shall be kept by the Tribunal only in electronic format. |
| Practice directions |
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33. (1) The Tribunal may issue practice directions. |
| Technology |
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(2) The Tribunal may give directions requiring the use of any electronic or digital means of communication, storage or retrieval of information, or any other technology it considers appropriate to facilitate the conduct of a hearing or case management conference. |
| Questions as to practice or procedure |
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34. (1) If, in the course of proceedings, a question arises as to the practice or procedure to be followed in cases not provided for by these Rules, the practice and procedure set out in the Federal Courts Rules may be followed. |
| Tribunal may direct |
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(2) If a person is uncertain as to the practice and procedure to be followed, the Tribunal may give directions on how to proceed. |
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PART 2 |
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CONTESTED PROCEEDINGS |
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APPLICATION |
| Application of Part |
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35. This Part applies to all applications to the Tribunal, except applications for interim or temporary orders (Part 4), applications for specialization agreements (Part 5), applications for leave under section 103.1 of the Act (Part 8) and applications for a loan order (Part 9). |
| Notice of application |
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36. (1) An application shall be made by filing a notice of application. |
| Form and content |
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(2) A notice of application shall be signed by or on behalf of the applicant and shall set out, in numbered paragraphs,
(a) the sections of the Act under which the application is made;
(b) the name and address of each person against whom an order is sought;
(c) a concise statement of the grounds for the application and of the material facts on which the applicant relies;
(d) a concise statement of the economic theory of the case, if any, except in the case of an application made under Part VII.1 of the Act;
(e) the particulars of the order sought; and
(f) the official language that the applicant intends to use in the proceedings. |
| Service of notice |
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37. (1) The applicant shall, within five days after a notice of application is filed, serve the notice on each respondent. |
| Proof of service |
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(2) The applicant shall, within five days after the service of the notice of application, file proof of service. |
| Response |
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38. (1) A respondent who wishes to oppose the application shall, within 45 days after being served with the notice of application,
(a) serve a response on the applicant and on any other respondent; and
(b) file the response with proof of service. |
| Form and content |
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(2) The response shall set out, in numbered
paragraphs,
(a) a concise statement of the grounds on which the application is opposed and of the material facts on which the person opposing the application relies;
(b) an admission or denial of each ground and of each material fact relevant to each ground set out in the notice of application;
(c) a concise statement of the economic theory of the case, if any, except in the case of an application made under Part VII.1 of the Act; and
(d) the official language that the person opposing the application intends to use in the proceedings. |
| Reply |
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39. (1) The applicant may, within 14 days after being served with a response in accordance with subrule 38(1), serve a reply on the respondent and on each other party and shall file the reply with proof of service. |
| Content |
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(2) A reply shall set out an admission or denial of each ground and of each material fact relevant to each ground set out in the response. |
| Failure to file |
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(3) If the applicant does not file a reply, the applicant is deemed to have denied each ground and each material fact relevant to each ground set out in the response. |
| Timetable for disposition of application |
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40. (1) Each party shall, within 14 days after the expiration of the period for filing a response, consult with the other parties and, if a timetable is agreed, file the proposed timetable for the disposition of the application, including a suggested start date, duration and place for the hearing. |
| Timetable not agreed |
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(2) If the parties cannot agree on a timetable, each party shall serve on the other parties a proposed timetable and file it with proof of service within the period set out in subrule (1). |
| Order in default of response |
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41. (1) If a person has not filed a response within the period set out in subrule 38(1), the applicant may move that the Tribunal issue the order sought in the notice of application against the person. |
| Decision |
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(2) On a motion in accordance with subrule (1), the Tribunal shall, if it is satisfied that the notice of application was served in accordance with these Rules and it has heard any evidence that it may require, make any order that it deems appropriate. |
| Service |
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(3) The Registrar shall, as soon as an order is made, serve the order on the respondent and on each party. |
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INTERVENTION |
| Motion for leave to intervene |
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42. A motion under subsection 9(3) of the Competition Tribunal Act for leave to intervene shall be filed within 10 days after the end of the period for filing a response. |
| Service and filing motion |
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43. (1) A motion for leave to intervene shall be made by
(a) serving on each of the parties a motion for leave to intervene and an affidavit setting out the facts on which the motion is based; and
(b) filing the motion and the affidavit with proof of service. |
| Content |
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(2) A motion for leave to intervene shall set out
(a) the title of the proceedings in which the person making the motion wishes to intervene;
(b) the name and address of that person;
(c) a concise statement of the matters in issue that affect that person and the unique or distinct perspective that the person will bring to the
proceeding;
(d) a concise statement of the competitive consequences arising from the matters referred to in paragraph (c) with respect to which that person wishes to make representations;
(e) the name of the party, if any, whose position that person intends to support;
(f) the official language to be used by that person at the hearing of the motion and, if leave is granted, in the proceedings; and
(g) a description of how that person proposes to participate in the proceedings. |
| Disposition without hearing |
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(3) A person filing a motion for leave to intervene may request in writing that the Tribunal dispose of the motion without a hearing. |
| Response |
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44. (1) A party served with a motion for leave to intervene may, within 14 days after that service, serve a response to the motion on the person making the motion and on each of the parties and shall file any response to the motion with proof of service. |
| Content |
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(2) A response to a motion for leave to intervene shall
(a) deal with the matters raised in the motion; and
(b) state whether the party filing the response considers that a hearing should be held to determine the motion. |
| Reply |
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45. A person making a motion for leave to intervene may, within seven days after the service of the response referred to in rule 44, serve a reply on each of the parties and shall file the reply with proof of service. |
| Disposition |
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46. (1) If the Tribunal is of the opinion that a hearing should be held to determine a motion for leave to intervene, the motion shall be disposed of at a time and in a manner determined by the
Tribunal. |
| Determination by Tribunal |
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(2) The Tribunal may allow a motion for leave to intervene, refuse the motion or allow the motion on any terms and conditions that it deems appropriate. |
| Intervention allowed |
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47. If a motion for leave to intervene is allowed
(a) the Registrar shall send to the intervenor a list of all documents filed in the proceedings before or on the day on which the motion for leave to intervene was allowed;
(b) on request, the intervenor may obtain copies of the documents on the list from the Registrar;
(c) each party and each other intervenor shall serve on the intervenor any document that is filed by them after the day on which the motion for leave to intervene was allowed; and
(d) access by an intervenor to a document filed or received in evidence is subject to any relevant confidentiality order of the Tribunal. |
| Service of documents |
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48. Any document to be filed by an intervenor shall be served on each party and each other intervenor and shall be filed with proof of service. |
Intervention
by attorney general of a province |
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49. (1) If a notice of application relating to an application under section 86, 87 or 92 of the Act is filed, the Registrar shall serve the notice on the attorney general of each province. |
| Date for filing notice |
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(2) The Registrar shall inform the attorney general of each province of the date on or before which any notice of intervention under rule 50 must be filed. |
| Notice of intervention |
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50. (1) The attorney general of a province who decides to intervene in any proceedings before the Tribunal under section 86, 87 or 92 of the Act shall
(a) serve a notice of intervention on each party; and
(b) file the notice with proof of service within
10 days after the expiry of the period for filing a response. |
| Content |
|
(2) A notice of intervention shall set out
(a) the title of the proceedings in which the attorney general is intervening;
(b) a concise statement of the nature of the interest of the attorney general in the proceedings;
(c) a concise statement of the matters in respect of which the attorney general will make representations on behalf of the Province;
(d) the name of the party, if any, whose position the attorney general intends to support; and
(e) the official language that the attorney general intends to use in the proceedings. |
| Service |
|
(3) The Registrar shall serve the notice of intervention on each other intervenor as soon as it is filed. |
| List of documents |
|
51. If a notice of intervention is filed
(a) the Registrar shall send to the attorney general a list of all documents filed in the proceedings before or on the day on which the notice of intervention was filed;
(b) on request, the attorney general may obtain copies of the documents on the list from the
Registrar;
(c) each party and each other intervenor shall serve on the attorney general any document filed by them after the day on which the notice of
intervention was filed; and
(d) access by the attorney general to a document filed or received in evidence is subject to any relevant confidentiality order of the Tribunal. |
| Participation of an attorney general |
|
52. (1) Subject to subsection 57(4) of the Federal Courts Act, the participation of an attorney general who has filed a notice of intervention is restricted to attending and making submissions at motions, case management conferences and the hearing of the application. |
| Motion for leave to participate |
|
(2) The attorney general may at any time serve and file with proof of service a motion for leave to participate in the proceedings in a manner other than that set out in subrule (1). |
| Service of documents |
|
53. Any document to be filed by an attorney general shall be served on each party and any other intervenor and shall be filed with proof of service. |
| Intervention by the Commissioner |
|
54. (1) If the Commissioner intervenes in a proceeding under section 103.2 or subsection 124.2(3) of the Act, the Commissioner shall file a notice of intervention that sets out
(a) the title of the proceedings in which the Commissioner is intervening; and
(b) a concise statement of the matters on which the Commissioner wishes to make representations. |
| Service |
|
(2) The Registrar shall serve the notice of intervention on each party as soon as it is filed. |
| Commissioner's access to documents |
|
55. If a notice of intervention is filed by the Commissioner,
(a) the Registrar shall, within five days after the filing of the notice, send to the Commissioner a list of all documents filed in the proceedings before or on the day on which the notice of intervention was filed;
(b) on request, the Commissioner may obtain copies of any of the documents on the list from the Registrar;
(c) each party shall serve on the Commissioner any document that is filed by them after the day on which the notice of intervention is filed; and
(d) access by the Commissioner to a document filed or received in evidence is subject to any relevant confidentiality order of the Tribunal. |
| |
|
ADMISSIONS |
| Requests for admissions |
|
56. A party may, after pleadings have been closed, request that another party admit a fact or the authenticity of a document by serving a request to admit, in form 255 of the Federal Courts Rules, on that party, with any modifications that the circumstances require. |
| Deemed admissions |
|
57. (1) A party who is served with a request to admit is deemed to admit the truth of a fact or the authenticity of a document set out in the request to admit unless that party serves a response to the request in form 256 of the Federal Courts Rules within 20 days after service of the request and denies the admission, setting out the grounds for the denial, with any modifications that the circumstances require. |
| Admissions for purposes of the proceedings |
|
(2) A party is deemed, for the purposes of the proceeding only, to admit the truth of the facts or the authenticity of the documents mentioned in the request, unless the party's response
(a) specifically denies the truth of a fact or the authenticity of a document mentioned in the request; or
(b) refuses to admit the truth of a fact or the authenticity of a document and sets out the reason for the refusal. |
| Costs |
|
58. If a party denies or refuses to admit the truth of a fact or the authenticity of a document after receiving a request to admit, and the fact or authenticity of the document is subsequently proved at the hearing, the Tribunal may take the denial or refusal into account in exercising its discretion respecting costs. |
| Withdrawal of admission |
|
59. An admission made in response to a request to admit, a deemed admission under rule 57 or an admission in a pleading may be withdrawn on consent of the other party or with leave of the Tribunal. |
| |
|
DISCOVERY |
| Affidavit of documents |
|
60. (1) The applicant and each respondent who has filed a response shall, within the time prescribed at a case management conference, serve an affidavit of documents on each other party. |
| Content |
|
(2) An affidavit of documents shall include
(a) a list identifying the documents that are relevant to any matter in issue and that are or were in the possession, power or control of the party;
(b) any claim that a document is confidential or contains confidential information;
(c) any claim that a document is privileged; and
(d) a statement of the grounds for each claim of privilege. |
| Power of the Tribunal |
|
61. Upon the motion of a party who has served an affidavit of documents and who opposes a claim for privilege of another party, the Tribunal may inspect the document and determine the validity of the claim. |
| Implied undertaking |
|
62. The implied undertaking at common law applies to documents and information obtained on discovery in Tribunal proceedings. |
| Supplementary affidavit |
|
63. A party who has served an affidavit of documents and who comes into possession or control of or obtains power over a relevant document, or who becomes aware that the affidavit of documents is inaccurate or deficient, shall as soon as possible serve a supplementary affidavit of documents listing the document or correcting the inaccuracy or deficiency. |
| Examination for discovery |
|
64. (1) Examination for discovery shall occur as of right. |
Power of
the Tribunal |
|
(2) The Tribunal may, in case management, make rulings to deal with the timing, duration, scope and form of the discovery as well as the appropriate person to be discovered. |
| |
|
ACCESS TO DOCUMENTS |
| Access to documents |
|
65. Subject to any confidentiality order under rule 66, a party who has served an affidavit of documents on another party shall allow the other party to inspect and make copies of the documents listed in the affidavit, unless those documents are subject to a claim for privilege or are not within the party's possession, power or control. |
| Confidentiality order |
|
66. (1) The Tribunal may order that a document or information in a document be treated as confidential and make any order that it deems
appropriate,
(a) upon the motion of a party who has served an affidavit of documents; or
(b) upon the motion of a party or intervenor who has filed or will file a document. |
| Clarification |
|
(2) For greater certainty, the Tribunal may issue a single confidentiality order to cover the
documents or information referred to in paragraphs (1)(a) and (b). |
Content
of motion |
|
67. The party or intervenor making a motion referred to in rule 66 shall
(a) include in the grounds for the motion details of the specific, direct harm that would allegedly result from unrestricted disclosure of the document or information; and
(b) include in the motion a draft confidentiality order including the following elements, namely,
(i) a description of the confidential document, the confidential information or the category of document or information for which the person seeks the confidentiality order,
(ii) the identification of the person or category of persons who are entitled to have access to the confidential information or document,
(iii) any document or information or category of document or information to be made available to the persons referred to in subparagraph (ii),
(iv) any written confidentiality agreement to be signed by the person referred to in subparagraph (ii) and the provisions of that agreement,
(v) the number of copies of any confidential document to be provided to the person referred to in subparagraph (ii) and any limitation on subsequent reproduction of that document by that person, and
(vi) the disposal of the confidential document following the final disposition of the proceeding. |
| |
|
PRE-HEARING DISCLOSURE |
| List of documents and witness statements |
|
68. (1) The applicant shall, at least 45 days before the commencement of the hearing, serve on every other party and on all intervenors
(a) a list of documents on which the applicant intends to rely at the hearing, noting any waivers of privilege claimed in regard to those documents; and
(b) witness statements setting out the lay witnesses' evidence-in-chief in full. |
Content
of witness statements |
|
(2) Unless the parties otherwise agree, the witness statements shall include only fact evidence that could be given orally by the witness together with admissible documents as attachments or references to those documents. |
| Response |
|
69. (1) Each respondent shall, at least 30 days before the commencement of the hearing, serve in response on every other party and on all intervenors
(a) a list of documents on which the respondent intends to rely at the hearing, noting any waivers of privilege claimed in regards to those documents; and
(b) witness statements setting out the lay witnesses' evidence-in-chief in full. |
Content
of witness statements |
|
(2) Unless the parties otherwise agree, the witness statements shall include only fact evidence that could be given orally by the witness together with admissible documents as attachments or references to those documents. |
| Reply |
|
70. The applicant may, at least 15 days before the commencement of the hearing, serve in reply on every other party and on all intervenors
(a) any additional reply documents on which the applicant intends to rely at the hearing as a result of the respondent's disclosure, and any waiver of privilege; and
(b) any new reply witness statements or additions to existing witness statements to deal with any issues raised in the reply. |
| |
|
EVIDENCE AT THE HEARING |
| Sanctions |
|
71. (1) If a document has not been disclosed in the affidavit of documents and in the pre-hearing disclosure, or if privilege has not been waived for such a document, it shall not be received in evidence at the hearing unless the Tribunal orders otherwise. |
| Exception |
|
(2) Subrule (1) does not apply to a document that is used solely as a foundation for, or as a part of a question in, cross-examination or re-examination. |
Records to
be admitted in evidence |
|
72. The Commissioner shall provide a list of the records to be admitted in evidence without further proof in accordance with section 69 of the Act at least 45 days before the commencement of the hearing. |
Information under
par. 11(1)(a) of the Act |
|
73. The Commissioner may move for authorization from the Tribunal to read into evidence information obtained under paragraph 11(1)(a) of the Act. |
| Direct evidence |
|
74. (1) The evidence-in-chief of each lay witness shall be tendered by way of the statement referred to in rules 68 to 70 and consist of their full statement of evidence and relevant documents or references to those documents. |
| Witness statements |
|
(2) Witness statements of lay witnesses shall be provided to the registry with proof of service at least 10 days before the commencement of the hearing. |
Tribunal
may read |
|
(3) The Tribunal may read the material provided, unless a party makes a valid objection. |
Witness
must attend |
|
(4) A witness statement may be received in evidence at the hearing only if the witness is in attendance and available for cross-examination or questioning by the Tribunal. |
Evidence
in chief |
|
(5) In appropriate circumstances and with leave of the Tribunal, a lay witness may give all or part of the witness's evidence-in-chief orally. |
| |
|
WITNESS PANELS |
| Witness panels |
|
75. The Tribunal may require that some or all of the witnesses testify as a panel at any time that the Tribunal may determine. |
| Manner of testimony |
|
76. (1) The Tribunal shall direct the manner in which the panel shall testify. |
| Cross-examination and re-examination |
|
(2) Counsel may cross-examine or re-examine witnesses. |
| |
|
EXPERT EVIDENCE |
| Expert report |
|
77. (1) At least 45 days before the commencement of the hearing, an applicant who intends to introduce evidence of an expert witness at the hearing shall serve the report of the expert witness on each other party and any intervenors. |
| Responding report |
|
(2) At least 30 days before the commencement of the hearing, a respondent may serve a responding expert report on each other party and any intervenors. |
| Reply report |
|
(3) The applicant may, at least 15 days before the commencement of the hearing, serve an expert reply report on each other party and any intervenors. |
Content
of report |
|
(4) A report referred to in subrules (1) to (3) shall include a full statement of the evidence of the expert witness, the expert's qualifications as an expert and a list of the sources and documents relied upon in the report. |
| Expert report provided to the registry |
|
78. (1) Unless otherwise ordered during case management, a report referred to in rule 77 shall be provided to the registry with proof of service at least 10 days before the commencement of the hearing. |
Tribunal
may read |
|
(2) The Tribunal may read the report provided, unless a party makes a valid objection. |
| Record |
|
(3) The report shall not form part of the record until it is received in evidence at the hearing. |
| Examination of expert witness |
|
79. A report referred to in rule 77 shall not be read aloud at the hearing but the expert witness may be examined in chief for the purpose of summarizing or highlighting the evidence contained in the report and may be cross-examined and re-examined. |
| Tribunal-appointed expert |
|
80. (1) The Tribunal may, at any time, by order appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in a proceeding. |
Agreed
upon expert |
|
(2) The parties may jointly recommend an expert to the Tribunal. |
| Submissions |
|
(3) The parties may make submissions about the terms of the order. |
Content
of order |
|
(4) The order shall contain the following
information:
(a) the name of the expert being appointed and the expert's qualifications;
(b) the instructions given to the expert with respect to the preparation of the report;
(c) the questions to be posed to the expert;
(d) the date on which the report of the expert is to be provided to the Tribunal;
(e) the nature and extent of the expert's participation in the proceeding; and
(f) the remuneration to be paid to the expert. |
Service
of report |
|
(5) The Registrar shall serve a copy of the report on every party and any intervenor. |
| Case record |
|
(6) The report shall be made part of the case
record. |
| Response |
|
(7) Any party may file a written response to the expert's report and may examine the expert. The order and nature of such examinations shall be determined by the Tribunal. |
| Further or supplementary report |
|
(8) The Tribunal may order the expert to make
a further or supplementary report, and subrules (4) to (7) apply to that report. |
Liability
for payment |
|
(9) The liability for payment of the remuneration of the expert shall be determined by the Tribunal at any time after the conclusion of the hearing following receipt of submissions on that issue. |
| |
|
PART 3 |
| |
|
MOTIONS |
| |
|
INFORMAL PROCEDURE |
| Informal procedure |
|
81. (1) Except in the case of a motion for summary disposition, if these Rules provide that relief shall be sought by way of motion, a party may begin by informally requesting relief by sending a letter to the registry and serving the letter on the other parties and on any intervenor, who shall respond promptly. |
| Tribunal direction |
|
(2) The Tribunal may issue a direction resolving a matter for which relief is requested under subrule (1) or direct the party to proceed by way of motion. |
| |
|
FORMAL PROCEDURE |
| Application |
|
82. Rules 83 to 88 apply to all motions except for a motion for leave to intervene referred to in rule 42 or a motion for summary disposition referred to in rule 89. |
| Notice of motion |
|
83. (1) A motion shall be commenced by notice of motion, setting out the grounds for the motion and the order sought. |
| Content |
|
(2) A notice of motion shall be accompanied by any supporting affidavits and other admissible
evidence. |
| Service |
|
(3) The moving party shall serve the notice of motion on each other party and any intervenors and file the notice of motion with proof of service. |
| Disposition without hearing |
|
84. (1) A moving party may request in writing that the Tribunal dispose of the motion without a hearing. |
| Disposition with a hearing |
|
(2) If a hearing is to be held, the notice of motion shall indicate that the motion is returnable at a date and time and in a manner directed by the Tribunal. |
| Service of response |
|
85. (1) A party or intervenor served with a notice of motion may, no later than seven days after being served, serve on the moving party and on each other party and intervenor a response stating the grounds on which the motion is opposed and any supporting affidavits. |
| Filing |
|
(2) The response and supporting affidavits, if any, shall be filed with proof of service within the period set out in subrule (1). |
| Decision without a hearing |
|
86. The responding party may request in writing that the Tribunal dispose of the motion without a hearing. |
| Evidence and memorandum |
|
87. The moving party and the responding party shall, no later than 10 days after the service of the response, serve on each other party and on any intervenors and file with proof of service
(a) any supplementary evidence to be relied on by the party, including transcripts; and
(b) a memorandum of fact and law. |
| Testimony by affidavit |
|
88. (1) Subject to subrule (2), testimony on a motion shall be by affidavit. |
| Oral testimony |
|
(2) The judicial member designated to preside at the hearing of a motion may, before or during the hearing, grant leave for oral testimony in relation to an issue raised in the notice of motion. |
| |
|
MOTION FOR SUMMARY DISPOSITION |
| Notice of motion |
|
89. (1) A motion for summary disposition under subsection 9(4) of the Competition Tribunal Act shall be commenced by a notice of motion, which shall set out the grounds for the motion and the order sought. |
| Timing |
|
(2) A party to an application may bring a motion for summary disposition under subsection 9(4) of the Competition Tribunal Act after the respondent has filed a response and at a time that enables the moving party to meet the deadline for the hearing of motions prescribed during a case management conference. |
| Content |
|
(3) The notice of motion shall be accompanied by
(a) a memorandum of fact and law; and
(b) any supporting affidavits and other admissible evidence. |
| Service |
|
(4) The moving party shall serve the notice of motion and the accompanying documents referred to in subrule (3) on each other party and any intervenors and shall file those documents with proof of service. |
| Response |
|
90. (1) A party served with a motion for summary disposition may, no later than 10 days after being served, serve a response on the moving party and on each other party and any intervenors. |
| Content |
|
(2) The response shall be accompanied by
(a) a memorandum of fact and law; and
(b) any supporting affidavits and other admissible evidence. |
| Filing |
|
(3) The response and accompanying documents referred to in subrule (2) shall be filed with proof of service within the period set out in subrule (1). |
| Genuine basis for application |
|
(4) A response to a motion for summary disposition shall not rest merely on allegations or denials of the pleadings of the moving party, but must set out specific facts showing that there is a genuine basis for the application or the response to the application. |
| Testimony |
|
91. Unless otherwise ordered, there shall be no oral testimony on a motion for summary disposition. |
| Power of the Tribunal |
|
92. The Tribunal may dismiss or allow the application in whole or in part in accordance with subsection 9(5) of the Competition Tribunal Act. |
| Motion — refused or granted in part |
|
93. If a motion for summary disposition is refused or is granted only in part, the Tribunal may make an order specifying any issues that are not in dispute and defining the issues to be determined. |
| Motion refused |
|
94. If a motion for summary disposition is refused, the moving party may not make a further motion under rule 89 without leave of the Tribunal. |
| |
|
PART 4 |
| |
|
INTERIM OR TEMPORARY ORDERS |
| |
|
APPLICATION |
| Application of Part |
|
95. This Part applies to applications for
(a) temporary orders made under subsection 74.11(1) of the Act in deceptive marketing practices cases before the Commissioner completes an inquiry and extensions to those temporary orders under subsection 74.11(5) of the Act;
(b) interim orders made under subsection 100(1) of the Act in merger cases before the Commissioner completes an inquiry and extensions to those interim orders under subsection 100(7) of the Act;
(c) interim orders made under subsection 103.3(1) of the Act in reviewable practices cases before the Commissioner completes an inquiry and extensions to those interim orders under subsections 103.3(5) and (5.3) of the Act or variations to them under subsection 103.3(7) of the Act; and
(d) interim orders made under subsection 104(1) of the Act in merger and reviewable practices cases after an application has been made to the Tribunal. |
| Notice of application |
|
96. (1) Applications for interim or temporary orders and extensions to those orders shall be made by filing a notice of application, which shall set out the grounds for the application and the order sought. |
| Content |
|
(2) The notice of application shall be accompanied by any supporting affidavits that the applicant intends to rely on. |
| Service and filing |
|
(3) In respect of applications made under subsection 104(1) of the Act, rule 37 applies to the service and filing of the notice of application, with any modifications that the circumstances require. |
| |
|
LANGUAGE OF HEARING |
| Official language |
|
97. A person against whom an interim order or a temporary order is sought shall inform the Registrar as soon as possible of the official language that that person intends to use at the hearing. |
| |
|
EX PARTE ORDERS |
| Service of ex parte orders |
|
98. (1) Any ex parte order of the Tribunal shall be served by the Commissioner on the person against whom the order was obtained. |
| Time and manner of service |
|
(2) The time and manner for effecting service shall be established by the Tribunal according to the circumstances. |
| |
|
APPLICATION TO VARY OR SET ASIDE
INTERIM ORDERS |
| Notice of application |
|
99. (1) An application under subsection 103.3(7) of the Act to vary or set aside an interim order
under subsection 103.3(1) of the Act shall be made by filing an application that satisfies the requirements of rule 96. |
| Service |
|
(2) The applicant shall, within 48 hours after a notice of application is filed, serve the application referred to in subrule (1) on the Commissioner. |
| Proof of service |
|
(3) The applicant shall, within 48 hours after the service of the application, file proof of service. |
| |
|
PART 5 |
| |
|
SPECIALIZATION AGREEMENTS |
| Notice of application |
|
100. (1) An application under subsection 86(1) of the Act for the registration of an agreement as a specialization agreement shall be made by filing a notice of application to which is appended a copy of the agreement. |
| Form and content |
|
(2) A notice of application shall be signed by the applicant or on behalf of the applicant and shall set out, in numbered paragraphs,
(a) the name and address of each party to the agreement;
(b) whether the agreement has been entered into or is about to be entered into;
(c) a concise statement of the grounds on which the applicant relies in asking the Tribunal to find that the agreement is a specialization agreement and that implementation of the agreement shall achieve the results described in paragraph 86(1)(a) of the Act;
(d) a concise statement of the grounds on which the applicant relies in asking the Tribunal to
find that the circumstances described in paragraph 86(1)(b) of the Act exist;
(e) the period for which registration of the agreement is requested; and
(f) the official language that the applicant intends to use in the proceedings. |
| Service |
|
(3) The applicant shall, within five days after a notice of application is filed, serve the notice on the Commissioner. |
| Proof of service |
|
(4) The applicant shall, within five days after service of the notice of application, file proof of service. |
| Notice of appearance |
|
101. (1) The Commissioner may, within 14 days after being served with a notice of application in accordance with subrule 100(3), serve a notice of appearance on the applicant and shall file it with proof of service. |
| Service and filing |
|
(2) The Commissioner shall, within 30 days after serving a notice of appearance,
(a) serve on the applicant a concise statement of the grounds on which the application is opposed or supported and the material facts relevant to those grounds on which the Commissioner relies; and
(b) file the statement with proof of service. |
| Motion for registration |
|
102. (1) If the Commissioner has not filed a notice of appearance or a statement within the applicable period set out in subrule 101(1) or (2), the applicant may move for an order directing that the agreement be registered. |
| Order of Tribunal |
|
(2) On a motion under subrule (1), the Tribunal shall, if it is satisfied that the notice of application was served in accordance with these Rules and it has heard any evidence that it may require, make any order that it deems appropriate. |
| Reply |
|
103. (1) An applicant may, within 14 days after being served with a statement, serve on the Commissioner a reply dealing with the matters raised in the statement. |
| Filing |
|
(2) The applicant shall, within the period set out in subrule (1), file the reply with proof of service. |
| Deemed denied |
|
(3) If the applicant does not file a reply, the applicant is deemed to have denied each ground and each material fact relevant to each ground set out in the statement. |
| Modification and removal |
|
104. The provisions of this Part relating to an application for the registration of an agreement apply, with any modifications that the circumstances require, to every application
(a) under subsection 87(1) of the Act with respect to the registration of a modification to a specialization agreement; or
(b) under subsection 87(2) of the Act with respect to the removal of a specialization agreement or of a modification to a specialization agreement from the register. |
| |
|
PART 6 |
| |
|
CONSENT AGREEMENTS |
| Application of Part |
|
105. This Part applies in respect of all consent agreements filed under sections 74.12 and 105 of the Act. |
Registration
of consent agreements |
|
106. (1) A consent agreement under section 74.12 or 105 of the Act shall be made by filing the agreement. |
| Content |
|
(2) The consent agreement shall be signed by the parties and shall set out
(a) the sections of the Act under which the agreement is made;
(b) the name and address of each person in respect of whom the agreement is sought; and
(c) the terms of the agreement. |
| Translation |
|
(3) A translation of the consent agreement in the other official language shall be filed within 10 days after the filing of the agreement. |
| |
|
PART 7 |
| |
|
REFERENCES |
| Application of Part |
|
107. This Part applies to every reference made to the Tribunal under section 124.2 of the Act. |
| Notice of reference |
|
108. (1) A reference shall be made by filing a notice of the reference under subsection 124.2(2) of the Act or a joint notice under subsection 124.2(1) of the Act that sets out
(a) the name of the applicant; and
(b) the question being referred. |
| Reference record |
|
(2) A notice of reference shall be accompanied by a reference record, which may include any affidavit setting out the facts on which the reference is based or an agreed statement of facts, and shall include a memorandum of fact and law. |
| Service |
|
109. (1) In the case of a reference made by the Commissioner and arising in proceedings before the Tribunal, the Commissioner shall serve the
notice of reference and the reference record on all other parties to the proceeding and on any
intervenors. |
| Service by other parties |
|
(2) Any other party to the proceedings in which the reference arises may also serve and file a reference record within seven days after being served with the notice of reference. |
| Amicus curiae |
|
110. (1) Without restricting the general powers of the Tribunal to appoint an amicus curiae in appropriate circumstances, the Tribunal may appoint an amicus curiae when the Commissioner files a notice of reference under subsection 124.2(2) of the Act. |
| Fees and disbursements |
|
(2) The fees and disbursements related to the amicus curiae shall be fixed by the Tribunal and be paid by the party designated by the Tribunal after hearing submissions. |
| Leave to refer in a private access case |
|
111. (1) An application for leave to refer a question to the Tribunal under subsection 124.2(3) of the Act shall be made by filing a notice of the application for leave. |
| Content |
|
(2) The notice of application for leave shall include the following information and documents:
(a) the name of the applicant;
(b) the notice of reference;
(c) an affidavit setting out the facts to be relied on, if any; and
(d) a memorandum of fact and law. |
| Notice to the Commissioner |
|
112. The parties shall, within five days after a notice of application for leave to refer a question is filed, serve the notice of the application for leave on the Commissioner. |
| Power of Tribunal |
|
113. (1) The Tribunal may grant an application for leave to refer a question, refuse the application or grant the application on any terms and conditions that it deems appropriate. |
| Leave granted |
|
(2) If leave is granted, the reference shall be filed in accordance with rule 108. |
| |
|
PART 8 |
| |
|
PRIVATE ACCESS |
| Application of Part |
|
114. This Part applies to applications for leave under subsection 103.1(1) of the Act and to consent agreements filed by persons other than the Commissioner. |
| Application for leave |
|
115. (1) An application under subsection 103.1(1) of the Act for leave to make an application under section 75 or 77 of the Act shall be made by filing an application for leave including an affidavit setting out the facts in support of the proposed application, a proposed notice of application and a memorandum of fact and law. |
| Information |
|
(2) The proposed notice of application under section 75 or 77 of the Act shall set out the information referred to in subrule 36(2). |
| Service |
|
116. (1) The applicant shall, within five days after the application for leave is filed, serve a copy of the application for leave on each person against whom an order is sought and on the Commissioner. |
| Proof of service |
|
(2) The applicant shall, within five days after the service of the copy of the application for leave, file proof of service. |
Certification
by the Commissioner |
|
117. The certification by the Commissioner
under subsection 103.1(3) of the Act shall be made by filing a letter with the Tribunal. |
| Notice by the Tribunal |
|
118. The Tribunal shall, within five days after receiving the Commissioner's certification, notify the applicant, the Commissioner and any person against whom an order is sought under section 75 or 77 of the Act as to whether the hearing of the application for leave is precluded by the operation of subsection 103.1(4) of the Act. |
| Representations in writing |
|
119. (1) A person served with an application for leave referred to in rule 115 who wishes to oppose the application shall, within 15 days after receiving the Tribunal's notice under rule 118,
(a) serve a copy of their representations in writing on the applicant, on any other person against whom the order is sought and on the Commissioner; and
(b) file the representations with proof of service. |
| Content |
|
(2) Representations in writing shall contain a memorandum of fact and law and shall set out the official language the person opposing the application intends to use. |
| Affidavit evidence |
|
(3) Representations in writing shall not contain affidavit evidence, except with leave of the
Tribunal. |
| Reply |
|
120. The person making an application for leave under section 103.1 of the Act may serve a reply within seven days after being served with the representations in writing under rule 119 and shall file the reply with proof of service. |
| Decision without oral hearing |
|
121. The Tribunal may render its decision on the basis of the written record without a formal oral hearing. |
| Power of Tribunal |
|
122. The Tribunal may grant the application for leave to make an application, refuse the application or grant the application on any terms and conditions that it deems appropriate. |
| Service |
|
123. The Registrar shall serve the decision without delay on the applicant, on each person against whom an order is sought and on the Commissioner who may intervene under section 103.2 of the Act. |
| Leave granted in full |
|
124. (1) If leave is granted in full, the notice of application that the applicant proposed to file is, for the purposes of the proceedings, deemed to have been filed and served on the date on which the order granting leave was made. |
| Leave granted in part |
|
(2) If leave is granted in part, an amended notice, in accordance with the order granting leave, shall be filed and served within five days after the order is made. |
| Registration |
|
125. The filing of a consent agreement by parties to a private action under section 106.1 of the Act shall be made in accordance with rule 106. |
| Publication |
|
126. (1) After the filing of a consent agreement by parties to a private action under section 106.1 of the Act, the Registrar shall publish without delay a notice in the Canada Gazette. |
| Content |
|
(2) The notice shall state
(a) that a consent agreement has been filed for registration;
(b) the name of each party to the agreement;
(c) the text of the agreement;
(d) that access to the agreement and any documents filed in the matter may be obtained at the office of the Registrar; and
(e) the date on or before which an application made under subsection 106.1(4) of the Act for the cancellation or replacement of the agreement must be filed. |
| Service |
|
127. A copy of a notice of application made by a third party to cancel or replace a consent agreement between parties to a private action shall be served on the Commissioner within five days after the notice of application is filed. |
| |
|
PART 9 |
| |
|
APPLICATION FOR A LOAN ORDER |
| Notice |
|
128. Before filing an application with the Tribunal for a loan order under subsection 30.19(2) of the Act, the Commissioner or the representative of the Commissioner shall give notice in writing to the Chairperson and to the parties to the proceedings. |
| Filing |
|
129. (1) The Commissioner or the representative of the Commissioner shall file the notice referred to in rule 128 at least 10 days before filing the application for a loan order. |
| Service |
|
(2) The Commissioner or the representative of the Commissioner shall, within five days after
the notice is filed, serve it on the parties to the
proceedings. |
| Notice of application |
|
130. (1) An application for a loan order by the Commissioner or the representative of the Commissioner shall be made by filing a notice of
application. |
| Content |
|
(2) A notice of application shall be in accordance with the requirements set out in subsection 30.19(3) of the Act and shall set out, in numbered paragraphs,
(a) the sections of the Act under which the application is made;
(b) the names of the parties to the proceedings;
(c) a concise statement of the grounds on which the application for a loan order is made and of the material facts on which the Commissioner
relies;
(d) the terms of the loan order sought; and
(e) the official language that the Commissioner intends to use in the proceedings. |
| Service |
|
131. (1) The Commissioner shall, within five days after a notice of application for a loan order is filed, serve the notice on the parties to the proceedings. |
| Proof of service |
|
(2) The Commissioner shall, within five days after the service of the notice of application, file proof of service. |
| Response |
|
132. (1) A person served with a notice of application for a loan order under subsection 30.19(2) of the Act and who wishes to oppose the application shall, within 15 days after receiving the notice of application,
(a) serve a response on the Commissioner and the other parties to the proceedings; and
(b) file the response with proof of service. |
| Form and content |
|
(2) A response shall set out, in numbered
paragraphs,
(a) a concise statement of the grounds on which the application for a loan order is opposed and of the material facts on which the person opposing the application relies;
(b) an admission or denial of each ground and of each material fact relevant to each ground set out in the application for a loan order; and
(c) the official language that the person opposing the application for a loan order intends to use in the proceedings. |
| Decision |
|
133. (1) The Tribunal may render its decision on the basis of the written record without a formal oral hearing. |
| Power of the Tribunal |
|
(2) The Tribunal may grant the application for a loan order, refuse the application or grant the application on any terms and conditions that it deems appropriate. |
| |
|
PART 10 |
| |
|
CASE MANAGEMENT |
| Definition of "judicial member" |
|
134. (1) For the purposes of this Part, "judicial member" means the Chairperson or a judicial member designated by the Chairperson. |
Powers of
a judicial member |
|
(2) Case management duties do not preclude a judicial member from presiding at the hearing of an application or reference. |
| Case management conferences |
|
135. (1) Subject to subrules (2) and (3), the judicial member shall conduct one or more case management conferences as soon as is practicable after the end of the period for filing a reply, or after the filing of a notice of reference, or sooner if indicated by the circumstances. |
| Specialization agreements |
|
(2) In the case of an application for the registration of a specialization agreement, the judicial member shall conduct a case management conference as soon as is practicable after the Commissioner has filed proof of service of a notice of appearance in accordance with subrule 101(1). |
| Loan order |
|
(3) In the case of an application for a loan order, if the judicial member deems that a hearing is necessary, the judicial member shall consult the parties with respect to any case management procedures within seven days after proof of service of the response to the application for a loan order has been filed. |
| Directions re scheduling |
|
136. The judicial member shall issue directions with respect to the scheduling of case management conferences. |
| Direction regarding list of matters to be considered |
|
137. (1) The judicial member may include in the directions referred to in rule 136 a list of the matters to be considered at the case management conference and may require the filing of memoranda regarding any of those matters. |
| Matters to be considered |
|
(2) Those matters may include
(a) the start date, duration and location of the hearing, as well as the medium for the hearing;
(b) any pending or anticipated motions, and a deadline date for the hearing of motions;
(c) any issues of confidentiality;
(d) the clarification, simplification and elimination of issues;
(e) the possibility of obtaining admissions of particular facts or documents, including an agreed statement of facts;
(f) a deadline for the completion of discovery, related motions and answering undertakings;
(g) the official language to be used for the pleadings and the hearing, as well as the official language in which each witness shall testify;
(h) in the case of a reference, the determination of whether there shall be oral evidence;
(i) a timetable for the exchange or serving
and filing of the various documents related to
the hearing, including affidavits of documents, joint briefs of authorities and agreed books of documents;
(j) any matter relating to pre-hearing disclosure;
(k) a timetable to be followed by the intervenors;
(l) all matters related to expert witnesses, including the possibility of experts meeting before a hearing to answer questions posed by the Tribunal;
(m) any amendments to the pleadings;
(n) the advisability of a pre-hearing reference or determination of a question of law;
(o) any requirement for a notice of a constitutional question;
(p) a timetable for the subsequent case management conferences; and
(q) any other matters that may aid in the disposition of the application. |
| Order |
|
138. After a case management conference, the Tribunal shall issue an order stating any rulings by the Tribunal relating to the matters considered at the case management conference. |
| Firm requirements |
|
139. (1) The dates set and other requirements established by case management orders are firm. |
| Variation |
|
(2) A request for a variation must be made by motion showing that compelling reasons exist for a change in the order. |
| Tribunal may amend |
|
(3) If the Tribunal is satisfied that compelling reasons exist for a change in the order, it may amend it. |
| |
|
PART 11 |
| |
|
TRANSITIONAL PROVISION AND REPEAL |
| |
|
TRANSITIONAL PROVISION |
| Proceeding already commenced |
|
140. These Rules apply only to proceedings commenced after these Rules come into effect. |
| |
|
REPEAL |
| Repeal |
|
141. The Competition Tribunal Rules (see footnote 1) are repealed. |
1. individual
On (date), at (time), I served (name of individual served) with (name of document) by leaving a certified copy with that person at (address where service was made).
2. partnership
On (date), at (time), I served (name of partnership served) with the (name of document) by leaving a certified copy with (name of partner) at (address where service was made).
3. corporation
On (date), at (time), I served (name of corporation served) with the (name of document) by leaving a certified copy with (name and position of the officer or person apparently in charge of the head office or a branch of the corporation) at (address where service was made).
4. Commissioner
On (date), at (time), I served the Commissioner with the (name of document) by leaving a certified copy with (name of the person with whom the copy was left) at (address where service was made).
5. a person represented by counsel who is willing to accept service
1. by leaving a copy
On (date), at (time), I served (name of person served) with the (name of document) by leaving a copy of the document at (address of person or of counsel's office where service was made).
2. by sending a copy by facsimile transmission
On (date), at (time), I served (name of person served) with the (name of document) by sending a copy of the document, including a cover page, by facsimile transmission to (name of person or counsel) at (fax number).
3. by sending a copy by registered mail and obtaining an acknowledgement of receipt
I, (name of counsel or designate), counsel (or designate of legal counsel), certify that on (date of service), I caused (name of party served) to be duly served with (name of document), by (method of service), on behalf of (party on behalf of whom the document is served).
R.S., c. 19 (2nd Supp.), Part I
