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Environmental Protection Review Canada
Draft Rules of Procedure*
Draft Rules of Procedure*
Definitions
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The following definitions apply in these rules:
Act: means the Canadian Environmental Protection
Act, 1999.
Applicant: means any person subject to an Environmental
Protection Compliance Order who applies to the Chief Review
Officer for a review of the Order.
Chief Review Officer: means the Chief Review Officer
appointed under section 244(1) of the Act.
Intervenor: means any person who the presiding Review
Officer permits to participate in a hearing according to Rule
18.
Minister: means the Minister of the Environment.
Review Officer: means a Review Officer appointed under
section 243 of the Act.
Party: means
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The applicant; and
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The Minister.
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Discretion
At any time in a review, where required by considerations of a
fair and expeditious hearing, the Review Officer may dispense
with or vary these Rules.
Application and Preparation for a Hearing
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Request for Review
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3.1 A request for review must be directed to the Chief
Review Officer within 30 days of the applicant's
receipt of a copy of a written Environmental Protection
Compliance Order or within 30 days after an oral Order is
given. The request must be in writing, signed by the
applicant or the applicant's representative, and
contain the following information:
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the name and address for service of applicant;
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a copy of the Environmental Protection Compliance
Order (EPCO) that is the subject of the request;
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the reasons why the applicant objects to the Order;
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whether the applicant will be applying to suspend
the operation of the Order, pursuant to subsection
258(2) of the Act.
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3.2 At the same time as a request is made to the Chief
Review Officer, the applicant must serve a copy of the
request on the Minister; this service must be made to the
Regional Office of the Department of the Environment in
the Region where the Order was issued or where the
applicant is located.
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3.3 A request for review must be in both written format
and, where possible, electronic format. Other filings made
in any proceeding may be in written or electronic format
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3.4 Upon receiving service of the request for review, the
Minister must, within five business days, disclose to the applicant
the relevant portion of the Minister's file in the
matter in a numbered format with a list of contents. The
disclosed material must also be filed with Environmental
Protection Review Canada by the Minister at the same time.
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Pre-Hearing Conference
The Review Officer may direct the parties to attend one or more
pre-hearing conferences for the purpose of making
representations to the Review Officer or receiving direction
from the Review Officer with respect to any of the following
matters:
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The clarification and simplification of issues;
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The admission of certain facts or the verification of
those facts by affidavit, or the use by either party of
documents of a public nature;
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The procedure to be followed in the review;
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The exchange between parties of written submissions;
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The question of whether any written submission, document
or testimony presented to or to be presented to the Review
Officer contains confidential information;
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The question of the confidential information, if any, to
which an expert appearing on behalf of a party may be
given access;
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Limitation on the number of witnesses, on the extent of
presentation of evidence, rebuttal evidence, or
cross-examination;
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The use of electronic communication, including
teleconferences and videoconferences, for the hearing;
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The schedule for the exchange between parties of
experts' reports, if any;
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Any other matter relevant to the hearing.
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Mediation
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5.1 Prior to the hearing, Environmental Protection Review
Canada may schedule a mediation meeting in which the
parties participate with a view to reaching a settlement
of the issues or reducing, clarifying or simplifying the
issues in dispute. Parties should come to the mediation
fully prepared for a useful discussion on all the issues
involved in the review and be prepared to negotiate and
make decisions.
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5.2 The Chief Review Officer will appoint a mediator, who
may be a Review Officer.
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5.3 On the consent of the parties, a Review Officer who
conducted the mediation may preside over the review
hearing.
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5.4 If no full settlement is reached on the issues, the
review process will continue. No reference to information
disclosed during mediation shall be made, except with the
consent of the parties.
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5.5 The mediator may exclude every person but the parties
from the mediation.
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5.6 All documents submitted and all statements made at the
mediation are confidential and on a without prejudice
basis.
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5.7 Any documents filed in the mediation will not be
accessible to the public and will be returned after the
mediation to the party who filed the documents. These
documents will not be considered to be part of the record
of the review. Where mediation leads to a settlement,
relevant documents that underlie the terms of the
settlement may be placed on the record of the review,
subject to provisions regarding confidentiality.
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Directions on Procedure
The Review Officer may issue directions to the parties
concerning the conduct of the review as provided in Rule 2.
These directions will prevail over any provisions in the Rules
that are inconsistent with the directions.
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Timing
Where under these Rules, the Review Officer fixes a time limit
and reference is made to a number of days for the doing of a
thing, it means business days.
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Combining Proceedings
If two or more requests for review involve the same or similar
questions of fact, law or policy, the Chief Review Officer may,
on notice to the parties and having heard their submissions on
the matter, arrange to have the reviews heard by one Review
Officer at the same time, or may adjourn one review until the
final disposition of the others.
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Form of Hearing
The Review Officer may conduct the review, including the
pre-hearing conference, by means of written communication,
telecommunication, or viva voce testimony, or any combination of
the above. The Review Officer may, on the consent of the
parties, dispense with oral representations.
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Language and Accommodation
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10.1 Parties and their representatives are entitled to
communicate and receive service in both Official
Languages. The parties must notify Environmental
Protection Review Canada of their language preferences at
the time of making the application.
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10.2 If a party requires an interpreter in a language
other than English or French or requires signing, the
party must notify Environmental Protection Review Canada
and the party must provide an interpreter at its own
expense.
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10.3 If a witness requires an interpreter in a language
other than English or French or requires signing, the
party calling the witness must notify Environmental
Protection Review Canada and provide an interpreter at the
party's own expense.
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10.4 The interpreter must be competent and independent and
be able to attest that he or she will interpret
accurately.
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10.5 Parties and their representatives must notify
Environmental Protection Review Canada as soon as possible
of any special needs of the parties or their witnesses.
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Representation of Parties
Parties and intervenors may appear in person or be represented
by counsel or an agent.
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Intervenors
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12.1 Any person may, with the leave of the Review Officer,
participate in all or part of a review on such conditions
as the Review Officer considers appropriate, taking full
account of the need for timely decision-making required
under the Act.
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12.2 When deciding whether to allow a person to
participate under this Rule, the Review Officer may
consider:
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the nature of the review;
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the issues;
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whether the person has a genuine interest in the
issues;
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the likelihood of the person's being able to
make a useful and different contribution to the
Review Officer's understanding of the issues;
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any delay or prejudice to the parties; and
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any other matters the Review Officer considers
relevant.
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12.3 A Review Officer may direct, as a condition of
participation, that persons seeking the status of
intervenor cooperate in providing evidence to the Review
Officer when the interests being represented or the
contributions to the Review Officer's understanding
are likely to be similar.
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12.4 When a Review Officer determines that a person will
be given the status of intervenor, he or she may direct
the parties to provide the intervenor with any information
or evidence relevant to the intervenor's interests
that has been provided or will be provided to the Review
Officer in the course of the review, subject to any
direction made under Rule 23 respecting confidentiality.
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12.5 Subject to any direction made by the Review Officer, an
intervenor may:
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Present his or her relevant testimony at a pre-arranged
time;
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Provide Environmental Protection Review Canada and the
parties with a written statement as a supplement to
oral testimony;
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Be questioned by the Review Officer and the parties;
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12.6 An intervenor may make written submissions to
Environmental Protection Review Canada at the end of the
proceeding.
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12.7 Subject to any direction to the contrary made by the
Review Officer, an intervenor may not:
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Call witnesses;
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Cross-examine witnesses;
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Bring motions.
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Notice and Distribution of Documents
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13.1 Unless the Review Officer directs otherwise, he or
she must give written notice of a hearing to the parties
and may give notice to other persons as the Review Officer
considers necessary. The notice must include the time,
place and purpose of the hearing; notice to the parties
must include a statement that if a party does not attend
the hearing, the Review Officer may proceed in the
party's absence.
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13.2 All evidence filed with the Review Officer must be
served on the other party at the same time. The Review
Officer may require a party to serve evidence on an
intervenor.
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13.3 A copy of all material filed by the applicant, the
Minister, and any intervenor will be kept at the offices
of Environmental Protection Review Canada and will be
available for inspection on terms to be set by the
presiding Review Officer.
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Service
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14.1 Unless otherwise stated, documents may be served by
hand delivery, mail, courier, facsimile, email or other
means of written or electronic communication.
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14.2 Where a person serves a document by electronic means,
the person must provide an original hard copy of the
document to the person served within two days, or such
longer period of time as the Review Officer may order,
after the document is served, unless the recipient waives
this provision.
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14.3 The date of service of a document will be determined
in accordance with the relevant Practice Direction.
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14.4 The person serving the document must provide proof of
service to Environmental Protection Review Canada, in
accordance with the terms of the relevant Practice
Direction.
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Additional Information and Summons
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15.1 A Review Officer, at any time in the review, may
require a party or any other person to provide such
information, documents, or other things as the Review
Officer determines to be necessary in order to obtain a
full and satisfactory understanding of the subject matter
of the review.
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15.2 A Review Officer, at the request of either party or
an intervenor or on his or her own initiative, may issue a
summons in the form set by Environmental Protection Review
Canada.
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Expert Evidence
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16.1 A party who intends to call an expert as a witness at
a hearing must file with Environmental Protection Review
Canada and serve on the other party or on an intervenor
the expert's report, in accordance with any procedures
determined at the pre-hearing conference.
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16.2 In the event that a party is unable to comply with
the rules set by the Review Officer at the pre-hearing
conference for the delivery of an expert's report, the
party must apply to the Review Officer for direction as to
when, and under what terms, the expert's report may be
filed.
Application and Preparation for a Hearing
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Order of Presentation
Unless the Review Officer directs otherwise, the evidence at the
hearing will be presented in the following order:
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the Minister, including any expert(s) called by the Minister;
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the applicant for a review, including any expert(s) called by
the applicant;
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the intervenors, if any;
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any expert(s) called by the Review Officer;
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the applicant's response, if any, to the expert(s) called
by an intervenor or the presiding Review Officer;
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the Minister, in reply;
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the applicant, in surreply.
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Adjournments
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18.1 A hearing may be adjourned from time to time by a
Review Officer on his or her own motion or where it is
shown to the satisfaction of the Review Officer that the
adjournment is required to permit an adequate hearing to
be held.
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18.2 In granting an adjournment, the Review Officer may
impose such conditions as he or she considers appropriate.
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Site Visit
At any time during the review, the Review Officer may schedule a
site visit, at the request of the parties or an intervenor or on
his or her own initiative. The Review Officer will set the terms
of reference for the site visit in advance, including the scope
and objectives of the visit, and will notify the parties and
intervenors, if any, in writing of the site visit and the terms
of reference for it.
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Written Arguments
A Review Officer may, whenever he or she considers it advisable
to do so, order written arguments to be submitted by a party to
the proceeding in addition to or in lieu of oral argument.
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Communications with the Presiding Review
Officer
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