Acts and Regulations

99-59 - Gas Distribution Rules of Procedure

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NEW BRUNSWICK
REGULATION 99-59
under the
Gas Distribution Act, 1999
Filed November 12, 1999
Under section 96 of the Gas Distribution Act, 1999, the Board of Commissioners of Public Utilities makes the following Regulation:
Citation
1This Regulation may be cited as the Gas Distribution Rules of Procedure - Gas Distribution Act, 1999.
Definitions
2In this Regulation,
“Act” means the Gas Distribution Act, 1999;(Loi)
“affidavit” includes a written affirmation;(affidavit)
“application” means an application made to the Board under the Act or any regulations made under the Act and includes a complaint;(demande)
“application for review” includes an application to review, rescind, amend or rehear any decision or order of the Board;(demande de révision)
“complaint” means a complaint made to the Board that alleges anything to have been done or omitted to have been done contrary to or in contravention of the Act or any regulations made under the Act; (plainte)
“guidelines” means the guidelines provided under subsection 96(4) of the Act;(lignes directrices)
“intervenor” means(intervenant)
(a) an interested person who establishes an interest in a proceeding;
(b) a gas distributor who files an answer to a complaint pursuant to section 19;
(c) where two or more applications are the subject of a single proceeding, an applicant with respect to any particular application dealt with in that proceeding; or
(d) a marketer of gas who relies on the gas distributor to deliver gas to the marketer’s customers;
“original proceeding” means, in respect of an application for a review under subsections 75(2) and (3) of the Act, the proceeding that gave rise to the decision or order in respect of which the review is sought;(instance initiale)
“party” means, in respect of a proceeding, a person who makes an application or an intervenor;(partie)
“Presiding Commissioner” means the member of the Board who presides at an oral hearing;(président d’audience)
“proceeding” includes a written, electronic or oral hearing, whether the proceeding is public or non-public, brought before the Board under the Act or this regulation, from the time when an application is filed with the Board or from the time when the Board issues directions on procedure in respect of any matter other than an application; (instance)
“Rules” means the Gas Distribution Rules of Procedure - Gas Distribution Act, 1999; and(règles)
“Secretary” means the Secretary of the Board.(secrétaire)
Dispensing with or Varying Rules
3(1)At any time in a proceeding, where considerations of public interest and procedural fairness permit, the Board may
(a) dispense with or vary this Regulation in whole or in part; or
(b) extend or abridge the time fixed by this Regulation or otherwise fixed by the Board, and may do so of its own volition or in response to a request by any party whether or not the request to extend or abridge the time is made after the time so fixed has expired.
3(2)Where the Board dispenses with or varies the Rules under subsection (1), the Board shall so notify all parties and any interested persons and shall issue directions in respect of the procedure appropriate to the proceeding.
3(3)This Regulation shall be liberally construed in the public interest to secure the most expeditious, most just, and least expensive determination on its merits of every proceeding before the Board.
3(4)Where procedures are not provided for in this Regulation, the Board may do whatever is necessary and permitted by law to enable it to adjudicate effectively and completely on the matter before it.
3(5)For greater certainty, this Regulation shall be interpreted in a manner that is consistent with any introduction by the Board of electronic regulatory filing.
3(6)Any form provided under this Regulation shall be used where applicable with such variations as the circumstances require.
Reckoning Time
4Except where otherwise stated, where reference is made to a number of days for the doing of a thing, it shall mean calendar days.
Expiry Dates
5Where the time fixed for the doing of a thing expires or falls on a holiday or a Saturday, the thing may be done on the day next following that is not a holiday or a Saturday.
Service of Documents
6(1)Subject to subsections (7) and (8), service of any document may be effected by hand delivery, courier, e-mail, facsimile, mail or other means of written or electronic communication, if the person being served has the facilities for receiving a document in such manner.
6(2)Any document that must be served shall set out the name of each person or group of persons on whom it is to be served and the Board’s file number, proceeding number and reference line.
6(3)Subject to subsection (4), the date of service of a document is the date on which the person being served or the person’s authorized representative receives the document.
6(4)A document that is received by the person being served or the person’s authorized representative after five o’clock in the afternoon at the place of service shall be considered to have been served on the next business day.
6(5)Where a person serves a document, the person shall, if the Board so requests, file an affidavit of service of the document.
6(6)Where a person is required to serve a document on more than one party, so far as is possible, service on each party shall be effected on the same day.
6(7)Where an oral hearing is in progress, service of any document in respect of the hearing may be effected by making a copy of the document available to each party present at the hearing and by giving a copy of the document to any other party who requests one.
6(8)Where a person serves a document by electronic means, the person shall, if requested, provide an original hard copy of the document to the person served within a reasonable period after a hard copy is requested.
Filing Documents
7(1)Subject to subsection (2), the filing of any document with the Secretary by hand delivery, mail, courier, e-mail, facsimile or other means of written or electronic communication shall constitute filing with the Board.
7(2)Where an oral hearing is in progress, the filing of any document with the presiding commissioner shall constitute filing with the Board.
7(3)Subject to subsection (4), the date of filing a document with the Board is the day on which the Secretary or the presiding commissioner receives the document in accordance with subsection (1) or (2), whichever applies.
7(4)A document that is received by the Board after its regular business hours, which are from eight o’clock in the forenoon to five o’clock in the afternoon, shall be considered to be filed on the next business day.
7(5)Every document that is filed with the Board in respect of a proceeding shall set out the Board’s file number, proceeding number and reference line.
7(6)Where a person files a document fewer than five days prior to the commencement of an oral hearing, the person shall bring to the hearing sufficient copies of the document for the Board and any party present.
7(7)Where a person is required to file a document with the Board and serve the document on one or more parties, the filing and the service shall, as far as possible, be effected on the same day.
7(8)Where a person files a document with the Board by electronic means, the person shall, if requested, provide an original hard copy of the document to the Board within a reasonable period after the hard copy is requested.
Amending Documents
8(1)During a proceeding, a party may amend any document filed with the Board.
8(2)During a proceeding, where the Board finds that a document or any part thereof may prejudice, embarrass or delay the fair conduct of the proceeding, the Board shall so notify the parties and may order that, unless the document or part thereof is amended or withdrawn within the time limit set out in the notice, the document or part thereof be struck out.
8(3)Where a party, in accordance with this section, amends any document or part thereof,
(a) each amended page shall indicate
(i) the date of the amendment, and
(ii) the portion of the page amended, by means of a vertical line, asterisk or other similar marking, in the margin opposite to the amendment; and
(b) each amendment shall be accompanied by a statement explaining the nature of the amendment.
Questions of Law
9(1)Where, in the opinion of the Board, a question or issue of law, of jurisdiction or of practice or procedure should be decided at any time in a proceeding, the Board may direct that the question or issue be raised for a determination by the Board.
9(2)The Board may, pending the determination of the question or issue referred to in subsection (1), stay the whole or any part of the proceeding.
Form of Applications
10Every application shall be in writing, signed by the applicant or the applicant’s authorized representative and filed with the Board.
Content of Applications
11(1)Every application shall
(a) contain a concise statement of the relevant facts, the provisions of the Act or any regulations made under the Act under which the application is made and the nature of, and justification for, the decision or order sought;
(b) contain, in addition to the information that is required by the Act and any regulations made under the Act, any other information that explains or supports the application, including information referred to in the Gas Distribution and Marketers’ Filing Regulation - Gas Distribution Act, 1999 and guidelines; and
(c) set out the name, address, telephone number and any other telecommunications numbers of the applicant and the applicant’s authorized representative, if any.
11(2)Every application shall be divided into consecutively numbered paragraphs, each of which shall be confined as nearly as is practicable to a distinct portion of the subject matter of the application in accordance with normal rules of good writing.
Production of Documents
12Unless the Board otherwise orders, where at any time during a proceeding a person intends to rely on a document other than a decision or order of or document released by the Board, the person shall
(a) file the document with the Board and serve a copy of it on all parties; or
(b) where the document is already in the Board’s possession, file a statement identifying the document and the circumstances under which it came into the possession of the Board.
Supplementary Information
13At any time during a proceeding, the Board may require a party to provide such further information, particulars or documents as may be necessary to enable the Board to obtain a full and satisfactory understanding of what the proceeding is about.
Complaints
14A complaint shall be served by the complainant on any person whose conduct is the subject of the complaint and that person may, within seven days after receipt of the complaint, file a written answer with the Board and shall serve a copy of any answer on the complainant.
Failure to Comply
15(1)Where an applicant fails to provide the information described in section 13 or does not respond to a request for information from the Board or any other party, the Board may adjourn the application until the information is provided, whether or not the application has been set down for a hearing.
15(2)Where a party does not comply with these rules or any directions issued by the Board, the Board may adjourn the proceeding until the Board is satisfied that the Rules or directions have been complied with or may take such other steps as are just and reasonable in order to conduct a fair proceeding.
15(3)Unless the Board otherwise orders, where an application or proceeding has been adjourned for one year under subsection (1) or (2), the application that has been adjourned or the application giving rise to the proceeding that has been adjourned shall be considered to have been withdrawn and shall be returned to the applicant.
Conduct of Hearings
16Sections 17 to 36 inclusive apply to the conduct of hearings before the Board that are held in its discretion, whether the evidence in respect of the hearing is in written or oral form.
Form of Hearings
17The Board may decide that a proceeding is to be disposed of by an oral, a written or an electronic hearing.
Hearing Orders and Notice
18(1)The Board
(a) shall issue a hearing order, containing the procedural details applicable to the hearing, accompanied by a notice of public hearing, where an application is to be decided by an oral hearing; and
(b) may issue a hearing order, containing the procedural details applicable to the hearing, which may be accompanied by a notice of public hearing, where an application is to be decided by a written or an electronic hearing.
18(2)Where the Board issues a notice of hearing in accordance with subsection (1), the applicant shall, within such time limit as the Board may direct,
(a) publish the notice in such publications as the Board may direct; and
(b) serve a copy of the notice on such persons as the Board may direct.
18(3)An applicant shall file an affidavit of publication and service with the Board that sets out the title and date of each publication in which the notice of public hearing was published and the means taken to effect service on the persons directed by the Board to be served.
18(4)Where the Board does not issue a hearing order, it shall notify interested persons of any hearing and the procedure to be followed in the proceeding.
Public Inspection of Documents
19Where the Board issues a hearing order,
(a) the applicant shall keep available at the applicant’s business address and at other locations specified by the Board, for public inspection during regular business hours, a copy of all documents relating to the proceeding; and
(b) the Board shall keep available for public inspection in the Board’s offices a copy of all documents related to the proceeding.
Formulation of Issues
20(1)The Board may define issues to be considered in a proceeding and shall notify parties of them.
20(2)To assist the Board in defining issues, the Board may invite parties to propose issues or to suggest amendments to any defined issues.
Written Submissions
21The Board may require parties to make written submissions for the purpose of considering any matters that could smooth the procedure and aid in the conduct and disposition of the proceeding.
Conference
22The Board may convene the parties to a conference
(a) to assist in defining issues as described in section 20; or
(b) to consider the matters described in section 21.
Interventions
23(1)Where a hearing order has been issued, any interested person may intervene in the proceeding by filing with the Board and serving on the applicant, if any, on or before the date set out in the order, a written intervention that
(a) in the case of an oral hearing, states whether the person intends to appear at the hearing and the official language in which the person wishes to be heard;
(b) sets out the name of the person and any authorized representative of the person and the mailing address, address for personal service, telephone number and any other telecommunications numbers of the person or the person’s authorized representative;
(c) establishes that the person’s interest justifies intervenor status in the proceeding; and
(d) subject to subsection (2), states the issues that the person intends to address at the hearing or, where the person does not intend to participate actively at the hearing, states the reasons why the person’s interest justifies intervenor status in the proceeding.
23(2)Where, by reason of an inability or insufficient time to study an application, a person is unable to include in the written intervention the information required by paragraph (1)(d), the person shall
(a) provide a statement in the written intervention explaining why the person was unable or why there was insufficient time to study the application; and
(b) as soon as possible after the date of service of a copy of the application or as soon as possible after the date of filing of the written intervention, whichever is the later, file with the Board and serve on the applicant, if any, a supplement to the written intervention containing the information required by paragraph (1)(d).
23(3)The Board may accept or disallow an intervention, depending on whether the requirements set out in subsection (1) have been met; and in either case the Board shall notify the applicant, if any, and the person who filed the intervention of its decision in respect of the intervention.
23(4)An intervenor, on being advised by the Board of the name and mailing address of any other intervenor, shall serve a copy of the written intervention and any supplement thereto on every other intervenor.
Letters of Comment
24(1)Any interested person who does not wish to intervene in a proceeding but who wishes to make comments to the Board regarding the proceeding may file with the Board and serve on the applicant, if any, on or before the date set out in the order, a letter of comment stating the person’s view on the proceeding.
24(2)The Board shall provide all parties with a copy of any letter filed pursuant to subsection (1).
Service on Intervenors
25Unless the Board otherwise directs, an applicant who is notified that an intervention has been accepted by the Board shall, within such time limit as the Board may fix, serve on the intervenor
(a) a copy of the application;
(b) any information, particulars or documents relevant to the application that have been filed with the Board; and
(c) any hearing order issued by the Board, in the official language as appropriate or as requested.
Requests for Information
26A party may direct an information request, within such time limit as the Board may fix, to any other party in relation to any matter relevant to the proceeding.
Form and Service of Requests for Information
27(1)An information request shall be in writing, addressed to the applicable party and numbered consecutively in respect of each information request, including prior information requests.
27(2)Within any time limit fixed by the Board, every information request shall be served on the party to whom it is directed and a copy of the request shall be filed with the Board and served on all other parties.
Responses to Requests for Information
28(1)A party served with an information request shall, within any time limit fixed by the Board,
(a) provide a full and adequate response in writing to each information request, on separate pages for each question where practicable; and
(b) file with the Board and serve on all other parties a copy of the response provided.
28(2)A party who is not satisfied with a response to an information request may request the Board to order a further and better response.
Written and Oral Requests
29(1)Any matter that arises in the course of a proceeding and that requires a decision or order of the Board shall be brought before the Board by written request.
29(2)A written request shall
(a) be in writing;
(b) be signed by the person making the request or the person’s authorized representative; and
(c) contain a statement of the facts, the decision or order sought and the grounds for the request.
29(3)The request shall be filed with the Board and served on all parties.
29(4)A party who wishes to answer a written request may do so in the same manner as a party makes a written request.
29(5)Notwithstanding subsections (1) to (3), a request may, during an oral hearing, be given orally, and where it is so given, it shall be dealt with as the Board determines.
Evidence at Oral Hearings
30(1)A party who intends to present evidence at an oral or electronic hearing shall, within such time limit as the Board may fix, file with the Board and serve on all other parties written evidence containing
(a) the position of the party on the issues in the hearing; and
(b) particulars regarding the name, title, position and other credentials of each witness who will address evidence on behalf of the party and the issues that the witness will address at the hearing.
30(2)Each witness referred to in paragraph (1)(b) shall confirm orally at the hearing that the written evidence or part thereof that the witness will address at the hearing was prepared by the witness or under the direction and control of the witness and is accurate to the best of the knowledge and belief of the witness.
30(3)Written evidence shall be
(a) in numbered question-and-answer form; or
(b) in narrative form, each paragraph of which shall be consecutively numbered.
30(4)Witnesses at an oral hearing shall be examined orally on oath or solemn affirmation.
30(5)A witness may be cross-examined on his or her witness statement and on any material that is relevant to the issues in the proceeding.
30(6)The following information is considered to constitute the record of the proceeding:
(a) the information contained in or referred to in the application;
(b) the responses by the parties to information requests;
(c) any additional information provided by the parties as required under section 13;
(d) the written evidence filed by the parties; and
(e) the exhibits marked in the proceeding.
Evidence at Written or Electronic Hearings
31(1)In the case of a written or electronic hearing, the Board may decide an application on the basis of the material before it or may require additional information under section 13.
31(2)Additional information provided by the applicant shall be filed with the Board and served on all other parties.
31(3)Where the Board provides parties the opportunity of filing written evidence, the written evidence shall be prepared in accordance with subsection 30(3).
31(4)Written evidence filed with the Board for a written or electronic hearing shall provide evidence of whose direction or control it was prepared under and that it is accurate.
31(5)The record of the applicant in a written or electronic hearing is as described in subsection 30(6).
Communication with Witnesses
32Except during examination or cross-examination, there shall be no communication between any counsel and a witness under examination or cross-examination from the time when the witness is sworn or affirmed until that witness has been excused, unless it is necessary to comply with undertakings, deal with procedural matters, prepare for cross-examination of parties adverse in interest, or prepare the witness for a subsequent examination and cross-examination, or for other reasons with leave of the Board.
Opening Statements
33Unless the Board otherwise orders, to ensure that no person is prejudiced by surprise, any opening statement that a witness intends to make shall, at least one clear business day before the attendance of the witness, be filed with the Board and served on all other parties by the party calling the witness.
Summonses
34(1)The Board may issue a summons, which shall be signed and sealed by the Secretary with the Board’s seal.
34(2)A summons shall be in the form set out in the schedule and may set out the names of any number of persons required to appear before the Board.
34(3)No person served with a summons is required to appear before the Board unless the person or the counsel representing the person or the person’s organization before the Board has been paid or tendered attendance money calculated in accordance with the New Brunswick Rules of Court for a witness appearing before the Court of Queen’s Bench.
34(4)A summons shall be served personally on the person to whom it is directed at least two clear days before the date on which the person is to appear.
Simultaneous Interpretation
35Where both official languages are intended to be used at an oral hearing, the Board shall make simultaneous interpretation available to the parties at the hearing.
Argument
36The Board may order parties to submit written argument in addition to or in lieu of oral argument.
Applications for Review
37(1)Any application for review shall be in writing, signed by the applicant or the applicant’s authorized representative, filed with the Board and served on all parties to the original proceeding.
37(2)An application for review shall contain
(a) a concise statement of the facts;
(b) the grounds that the applicant considers sufficient, in the case of an application for review, to raise a doubt as to the correctness of the decision or order or to establish the requirement for a rehearing, including
(i) any error of law or of jurisdiction,
(ii) changed circumstances or new facts that have arisen since the close of the original proceeding, or
(iii) facts that were not placed in evidence in the original proceeding and that were then not discoverable by reasonable diligence;
(c) any prejudice or damage that has resulted or will result from the decision or order; and
(d) the relief sought.
37(3)For the purposes of subsection (2), unless otherwise determined by the Board, an original proceeding is considered to be closed at the completion of the final argument stage of the proceeding, whether final argument is oral or written.
Decisions on Review or Rehearing
38(1)Upon receipt of an application for review or rehearing, the Board may, subject to subsection (2),
(a) dismiss the application if the Board is of the view that the applicant has not raised a doubt as to the correctness of the Board’s decision or order; or
(b) order a review and give such directions as the Board considers necessary.
38(2)Before making a determination under subsection (1) the Board may
(a) give interested persons the opportunity to make submissions and specify procedures for doing so; and
(b) determine that a review is required and issue directions on procedure giving interested persons the opportunity to make submissions on the merits of rescinding, amending or rehearing the Board’s decision or order.
Directions on Procedure
39Directions on procedure issued pursuant to subsection 38(2) may require that
(a) the applicant for a review or rehearing shall serve a copy of the directions on procedure on all parties to the original proceeding;
(b) an interested person who files a submission with the Board shall serve a copy on the applicant for a review or rehearing and on all parties to the original proceeding;
(c) the applicant for a review or rehearing shall be given an opportunity to reply to all submissions; and
(d) the applicant for a review or rehearing shall file with the Board a copy of any reply and shall serve a copy of that reply on all parties to the original proceeding and on any interested person who has filed a submission.
Applications for Stay
40(1)Any party may apply to the Board for an order, in the case of a review, staying the decision or order in respect of which the review is sought and pending the outcome of the review or rehearing.
40(2)Where an application for leave to appeal to the Court under subsection 89(1) of the Act has been made, any party may apply to the Board for an order staying the decision or order in respect of which leave to appeal is sought, pending the outcome of the appeal.
40(3)An application for a stay shall be in writing, signed by the applicant or the applicant’s authorized representative, filed with the Board and served on all parties to the original proceeding.
40(4)Upon receipt of an application for a stay, the Board may
(a) make an order staying the order, decision or original proceeding;
(b) dismiss the application for a stay; or
(c) issue directions on procedure inviting submissions from interested persons on whether or not a stay should be granted.
40(5)Directions on procedure issued pursuant to paragraph (4)(c) may require that
(a) the applicant for a stay shall serve a copy of the directions on procedure on all parties to the original proceeding;
(b) an interested person filing a submission with the Board shall serve a copy of the submission on the applicant for a stay and all parties to the original proceeding;
(c) the applicant for a stay be given an opportunity to reply to any submissions; and
(d) the applicant for a stay shall file a copy of any reply with the Board and serve it on all parties to the original proceeding.
Costs
41If the Board has made an order for costs under section 86 of the Act, in order for the Board to fix those costs, the claimant shall prepare an itemized statement of the actual costs reasonably incurred by it for the purposes of the proceeding and shall send a copy of the statement to the Board and to the person from whom costs are being claimed and other parties.
Failure to Pay Costs Promptly
42(1)Where a person from whom costs are being claimed receives a copy of a statement of costs and does not pay the costs in full within thirty days after the date of mailing of the statement, the claimant may request the Board to fix the amount to be paid by the person.
42(2)A person from whom costs are being claimed who receives a copy of a statement of costs may request the Board to fix the amount to be paid by the person.
42(3)Any request referred to in this section shall be in writing and the claimant shall send, on the same day and by registered mail, a copy of the request to the Board and to the person from whom costs are being claimed.
42(4)The Board may appoint a member of its staff to mediate between the company and the person involved in a request referred to in this section with a view to obtaining an agreement as to the amount of costs to be paid by the company.
42(5)Where no agreement is reached within twenty days after the appointment of a mediator, the Board shall give notice to the person and the company, and commence proceedings to fix the amount of costs to be paid.
Applications for Entry Orders
43To apply for an order under subsection 32(3) of the Act, a company shall, forthwith after serving the owner of the lands with the notice described in subsection 32(4) of the Act, file an application with the Board that includes
(a) a copy of the notice;
(b) evidence that the notice has been served on the owner of the lands within the time referred to in that subsection;
(c) a schedule that is proposed to be made part of the order sought and that contains, in a form suitable for depositing, registering, recording or filing against lands in the registry office of Service New Brunswick in the area in which land transactions affecting those lands may be deposited, registered, recorded or filed, a description of
(i) the lands in respect of which the order is sought,
(ii) the rights, titles or interests applied for in respect of the lands, and
(iii) any rights, obligations, restrictions or terms and conditions that are proposed to attach,
(A) to the rights, titles or interests applied for in respect of the lands,
(B) to any remaining interest or interests, or
(C) to any adjacent lands of the owner;
(d) evidence that the schedule described in paragraph (c) has been served on the owner of the lands; and
(e) a current abstract of title to the lands or a certified copy of the certificate of title to the lands.
Objections to Entry Orders
44(1)Where an owner of lands makes an objection described in paragraph 32(4)(c) of the Act, the owner of lands shall send a copy of the objection to the Board and to the gas distributor at the address shown in the notice served on the owner by the gas distributor.
44(2)A gas distributor that receives a copy of the objection referred to in subsection (1) shall file with the Board a written response to the objection and serve a copy of that response on the owner of the lands or shall inform the Board in writing that it does not wish to respond to the objection.
SCHEDULE
(Subsection 34(2))
SUMMONS
BOARD OF COMMISSIONERS OF
PUBLIC UTILITIES
IN THE MATTER OF
TO:
You are hereby required to attend before the Board at the __________ of __________ in the Province of New Brunswick on ______ day, the ______ day of ___________, 20___ at the hour of__________ o’clock in the ________ noon, and so from day to day until the above matter is heard, to give evidence on behalf of __________________ and also to bring with you and produce at the time and place aforesaid the following documents, VIZ: (specify documents)
IN WITNESS THEREOF this summons is signed for the Board of Commission of Public Utilities by its Secretary at Saint John, New Brunswick, this        day of ___________________, 20___.
(SEAL)
Secretary
Note: Subsection 34(3) of the Gas Distribution Rules of Procedure - Gas Distribution Act, 1999 provides as follows:
No person served with a summons is required to appear before the Board unless the person has been paid or tendered attendance money calculated in accordance with the New Brunswick Rules of Court for a witness appearing before the Court of Queen’s Bench.
N.B. This Regulation is consolidated to December 31, 1999.