ON1CALL RULES OF PROCEDURE FOR HEARINGS 1) DEFINITIONS

Transcription

1 ON1CALL RULES OF PROCEDURE FOR HEARINGS 1) DEFINITIONS 360 Feedback means the web-based solution provided by the Corporation for either (i) Members or Members designates to use to notify the Corporation whenever the status of a Locate Request has changed or (ii) anyone that has requested a locate to use the online function and check the status of their request; or such other software adopted by the Corporation from time to time. Act means the Ontario Underground Infrastructure Notification System Act, 2012, S.O. 2012, Chapter 4 and includes any regulations made pursuant thereto, as the same may be amended from time to time; Business Day means a day other than a Saturday, Sunday, or statutory holiday in the Province of Ontario; By-laws means By-law No. 2 of the Corporation, as amended from time to time, or any subsequent general by-law enacted by the Corporation; Code means Schedule 2 to By-Law No. 2 of Ontario One Call as incorporated into a regulation under the Act; Corporation means Ontario One Call, continued pursuant to subsection 2(1) of the Act; Document includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form; Electronic hearing means a hearing held by telephone conference or some other form of electronic technology allowing persons to hear one another; Excavator means any individual, partnership, corporation, public agency or other person or entity that digs, bores, trenches, grades, excavates, moves or breaks earth, rock or the materials in the ground, and excavation has a corresponding meaning; Excavator Locate Request means notification by an Excavator of Proposed Work to the Call Centre, to be by way of telephone, electronic transmission by computer, or such other means as the Corporation and the Member may agree upon from time to time; "Hearing" means a hearing in any proceeding conducted pursuant to these Rules; I.C. Manager means the Investigation and Compliance manager for ON1Call;

2 "In-person hearing means an oral hearing at which the parties or their counsel or agents attend in person before a panel of the ON1Call Compliance Committee; Member means any person or entity described in Section 5 of the Act and admitted as a Member and includes anyone otherwise admitted as a Member pursuant to the By-laws; Member s Plant means the Member s underground facilities in existence at any time; "Motion" means an application for an order or decision of the Compliance Committee or a panel thereof made in the course of a proceeding; Notification of Locate Request means the communication to the Member of an Excavator Locate Request received by the Call Centre; Oral hearing means a hearing involving the parties or their representatives attending in person before the panel of the Compliance Committee; Proposed Work means any actual or intended excavation, demolition, drilling or blasting and includes, without limitation, any disturbance of the surface and/or subsurface of the earth by an Excavator; "Proceeding" means a matter referred to the Compliance Committee for a hearing under the Code; Representative means legal counsel or agent who is authorized to represent the Member; Risk 1 means the possibility of suffering harm, loss or damage; "Service of document(s) means the effective delivery to the Member or representative; and Hearings Facilitator means a person appointed to facilitate a hearing before the Compliance Committee. 2) INTERPRETATION 1. These Rules shall receive such fair and liberal interpretation as will best ensure the most expeditious, just and least expensive determination of every proceeding on its merits. 2. Where matters are not provided for in these Rules, the practice shall be determined by the panel hearing the proceeding, or,

3 3) PROCEDURAL RULES where no panel has yet been struck, by the Compliance Committee. 2.1 These rules apply to all hearings and related proceedings before the Compliance Committee of ON1Call. 2.2 A hearing may be held by electronic hearing, or as an in-person hearing, or any other method at the discretion of the Compliance Committee, or as may be agreed upon by the parties. 2.3 The chair of the Compliance Committee or the person's designate will appoint a panel of a minimum of three members of the Compliance Committee to hear each matter referred to the Compliance Committee. 2.4 The Compliance Committee may appoint a Facilitator to preside over a hearing. The Facilitator may be the Compliance Committee Chair. 2.5 The I.C. Manager and the Member will be parties at the Compliance hearing. 2.6 The Compliance Committee may obtain legal advice from a lawyer independent of the parties during a hearing. If the Compliance Committee obtains independent legal advice during a hearing, the parties to the hearing will be notified of the substance of that advice and will be given an opportunity to make submissions in response to the legal advice provided. 2.7 The Compliance Committee will give notice of a hearing by serving upon the parties at least thirty (30) days before the commencement of a hearing a Notice of Hearing. 2.8 In any proceeding, the Compliance Committee, or a panel thereof, may issue procedural orders which shall govern the conduct of the proceeding. 2.9 The Compliance Committee, or a panel thereof, may, at any time during a proceeding, amend any procedural order The Compliance Committee, or a panel thereof, may, where it is satisfied that the special circumstances of the proceedings so require, vary or waive compliance with all or part of any Rule at any time by making a procedural order A procedural order shall prevail over any provision of these Rules that is inconsistent with the procedural order Subject to any procedural order issued by the Compliance Committee or a panel thereof, the parties to a proceeding may, on consent, waive any of the provisions of these Rules A party seeking waiver of any of the provisions of these Rules shall do so on a timely basis Where a party to a proceeding has not complied in full with any Rule or procedural order, the Compliance Committee, or a panel thereof, may,

4 a. Adjourn the proceeding until it is satisfied that such Rule or order has been complied with; or b. Take such other steps as it considers just and reasonable No proceeding or hearing is invalid by reason only of a defect or other irregularity in form Where a time of day is mentioned in these Rules or in any document or order in a proceeding, the time referred to shall be the time observed locally The Compliance Committee, or a panel thereof,may extend or abridge any time prescribed in these Rules or established by a procedural order during a proceeding, on such terms as are just. Under these Rules, holiday means: a. Any Saturday or Sunday; b. New Year's Day; c. Family Day; d. Good Friday; e. Easter Monday; f. Victoria Day; g. Canada Day; h. Civic Holiday; i. Labor Day; j. Thanksgiving Day; k. Remembrance Day; l. Christmas Day; m. Boxing Day; and n. Any day on which the staff offices of the Compliance Department of ON1Call are closed The Compliance Committee or a panel thereof, or the Hearings Facilitator, may require any party to a hearing to be served any document to the hearing in any of the following ways, or any combination thereof: a. By personal service by delivering the document to the person; b. By regular or registered mail to the person s last known address; c. By courier to the person s last known address; d. By facsimile transmission at the person s last known facsimile transmission number; e. By at the person s last known address; 2.19 All parties to a hearing, whether personally or through their solicitors or agents, shall bring to the hearing a sufficient number of copies for the Compliance Committee panel members and all parties to the hearing, including the parties counsel or agent, of all documents to be entered as evidence or exhibits 2.20 Every written document in a proceeding shall be on either letter or metric sized paper and the text shall be printed, typed, written or reproduced legibly (where practicable on both sides of each page) with double spaces between the lines.

5 4) DISCLOSURE 3.1 The Compliance Committee, or a panel thereof, may, at any stage in a proceeding, make such orders as it considers just and necessary for, a. The exchange of documents; b. The exchange of witness statements; c. The provision of particulars; and d. Any other form of disclosure. 3.2 The Compliance Committee shall set the time and place of a hearing. Once a date has been set for a hearing, it may not be adjourned except by order of the Compliance Committee or a panel thereof. 5) PRE-HEARING CONFERENCE 4.1 The Compliance Committee, or a panel thereof, may, at the request of a party or on its own initiative, direct that a pre-hearing conference be held in any proceeding and that the parties participate in the conference. 4.2 The purpose of a pre-hearing conference will be to: a. Exchange information between the parties including disclosure of particulars, physical or documentary evidence, lists of witnesses, and witness statements; b. Narrow or simplify any issues of law and fact; c. Identify agreed-upon facts, evidence or law; d. Provide notice of any preliminary motions; e. Establish dates by which any steps in the proceeding are to be begun or completed; f. Determine the estimated duration of the hearing; g. Determine any other matter that may assist in the just and expeditious disposition of the proceeding; and h. Mediate any or all outstanding issues in dispute. 4.3 At least five business days before a pre-hearing conference, the parties shall deliver to each other and to the Compliance Committee a pre-hearing conference memorandum not longer than five (5) pages in length addressing the issues, as appropriate, set out in the previous section. 4.4 Pre-hearing conferences may be conducted in person or by telephone conference call at the discretion of the Compliance Committee or the Hearings Facilitator or as may be agreed upon by the parties. 4.5 Parties shall attend or participate in a pre-hearing conference in person and, if represented by legal counsel or an agent, the representative(s) shall attend or participate together with the party. 4.6 No member of the Compliance Committee that has been selected to sit on a specific hearing panel may preside at a pre-hearing conference in respect of the same proceeding. The Compliance Committee or the Hearings Facilitator may designate a person to preside at a pre-hearing conference.

6 4.7 At the conclusion of the pre-hearing conference the parties or their representatives may sign a memorandum setting out the results of the pre-hearing conference ( the memorandum ). The memorandum may be placed before a hearing panel. 4.8 No information shall be provided or made available to the panel presiding at a hearing with respect to any statement made at a pre-hearing conference except as is disclosed in the memorandum. 4.9 A party may be represented by counsel or an agent at a pre-hearing conference and, where the party is not in attendance at the pre-hearing conference, such counsel or agent shall ensure that the party is available, either by telephone or by other means, to provide such instructions as may be required during the course of the pre-hearing conference. 6) HEARING QUORUM 5.1 Three members of the Compliance Committee constitute a quorum and one person must be an independent representative of the Excavator s community and one person must be from the same subcategory as the Member who is the subject of the hearing. 7) ADJOURNMENTS 6.1 A hearing may be adjourned from time to time by the panel of the Compliance Committee hearing the matter of its own motion or where it is shown to the satisfaction of the panel of the Compliance Committee hearing the matter that the adjournment is required to permit an adequate hearing to be held. Factors to be considered for an adjournment include: a. The reason for the adjournment request; b. The extent to which prejudice will be suffered by the party requesting the adjournment, if the adjournment is refused; c. The extent to which any other party will suffer prejudice if the adjournment is granted; d. Whether the other party consents to the adjournment; e. Whether the reason for the adjournment request is beyond the party s control; f. The amount of notice given by the party requesting the adjournment; g. Whether the party requesting the adjournment previously consented to the hearing or prehearing proceeding on the scheduled date; h. The length of the requested adjournment; i. Previous delays in the commencement or conduct of the hearing, including the number and length of previous adjournments; j. The public interest in the efficient and timely conduct of the proceedings; k. Whether there are other options available to address the issue that gave rise to the adjournment request; and l. Any other possible effects on the fairness of the proceedings.

7 8) FAILURE TO ATTEND HEARING 8.1 Where a person is properly notified of a hearing and does not attend at the time and place appointed, the panel of the Compliance Committee may proceed with the hearing in that person s absence and without further notice to that person. 9) MOTIONS 9.1 Where a party intends to bring a motion in the course of a proceeding, a minimum of seven business days of written notice shall be given to all other parties, and the written notice shall be filed with the Compliance Committee no later than seven business days prior to the commencement of the hearing of the motion. 9.2 The written notice may be in letter form and shall include: a) The order being requested and the grounds to support the request; b) All affidavits and exhibits to be relied upon on the motion, and/or a list of witnesses who will be giving viva voce or live evidence on the motion and a synopsis of their intended evidence, together with the transcripts of any cross-examinations; c) References to any authorities, including statutes and by-laws, to be relied upon in support of the relief sought on the motion; and d) A statement notifying the responding party that opposing material in similar form may be served on the moving party and filed with the Compliance Committee no later than three business days prior to the date set for the hearing of the motion. 9.3 Where the responding party wishes to oppose the motion, the responding party shall deliver to the moving party no less than three business days prior to the date set for the hearing of the motion a written statement which may be in letter form and which shall include: a) The order being requested, if any, and the grounds to support the request; b) All affidavits and exhibits to be relied upon on the motion, and/or a list of witnesses who will be giving viva voce or live evidence on the motion and a synopsis of their intended evidence, together with the transcripts of any cross-examinations; and c) References to any authorities, including statutes and by-laws, to be relied upon in support of the relief sought on the motion; all of which shall be filed with the Compliance Committee no later than three business days prior to the date set for the hearing of the motion. 9.4 The Compliance Committee may permit viva voce or live evidence at the hearing of a motion instead of or in addition to affidavit evidence. 9.5 Unless otherwise ordered, all cross-examinations on affidavits to be relied upon on a motion shall be completed prior to the date set for the hearing of the motion, and the transcripts shall be available for the hearing of the motion. 9.6 Motions in a proceeding may be heard and decided by one member of the Compliance Committee, or a panel thereof.

8 9.7 Notwithstanding the immediately preceding sub-rules with respect to Motions, the Compliance Committee may, at its sole discretion, vary or dispense with the procedure set out herein. 10) DISPOSITION WITHOUT HEARING 10.1 If the parties consent, a proceeding may be disposed of by a decision of the Compliance Committee, or a panel thereof, without a hearing. 11) DECISION NOT TO PROCESS DOCUMENTS RELATING TO THE HEARING 1.1 Upon receiving documents during a hearing, a panel of the Compliance Committee may decide not to accept the documents if, among other things: a. The documents are incomplete; or b. The documents are received after the time required for delivery of such evidence has expired; 12) CONDUCT OF HEARINGS 12.1 Where a hearing is conducted by telephone conference call, (a) All the parties and the members of the panel of the Compliance Committee participating in the hearing must be able to hear one another and any witnesses throughout the hearing; and (b) Subject to sub-paragraph (a), the conduct of the hearing shall be upon such terms as the Compliance Committee, or the panel thereof, may order or permit An in-person hearing shall be conducted in the following order of presentation, unless the Compliance Committee panel directs otherwise: a. The I.C. Manager for ON1Call or his or her representative may make an opening address and shall then adduce evidence. b. The Member or their representative may make an opening address immediately after the I.C. Manager s opening address or after the I.C. Manager has completed adducing evidence, and shall adduce any evidence after the I.C. Manager has completed adducing evidence. c. When the presentation of the evidence of the Member or their representative is concluded, the I.C. Manager may adduce any proper reply evidence. d. After all of the evidence has been adduced by all parties to the proceeding, the I.C. Manager of ON1Call or his or her representative may make a closing address, followed by the Member or their representative. e. Where there are two or more applicants or licensees, the order of presentation of opening addresses, evidence and closing addresses shall be as directed by the Compliance Committee or a panel thereof 13) EVIDENCE

9 13.1 No evidence is admissible at a hearing unless, in the case of the I.C. Manager, at least thirty (30) calendar days and, in the case of the other party or parties, at least fifteen (15) calendar days before the commencement of the hearing, the party tendering the evidence has given such evidence to every other party, as follows: a. In the case of written or documentary evidence, a copy of the evidence and, if requested, an opportunity to examine the original evidence; b. In the case of evidence of a witness, the identity of the witness and a statement of the anticipated evidence of that witness; c. In the case of evidence of an expert, the identity of the expert and a copy of the expert's written report containing the substance of the anticipated evidence of the expert; and d. An opportunity to examine any real evidence or thing that will be tendered as evidence at the hearing The panel of the Compliance Committee hearing a matter may, in its discretion, allow the introduction of evidence that is otherwise inadmissible under these Rules and the Code and may make such directions it considers necessary to ensure the parties are not prejudiced. 14) EVIDENCE BY WITNESSES 14.1 Unless these Rules provide otherwise, witnesses at a proceeding shall be examined orally and the examination may consist of direct examination, cross-examination and re-examination The panel of the Compliance Committee hearing the matter shall ensure there is no undue harassment or embarrassment of a witness as he or she is giving evidence and may disallow a question put to the witness that is vexatious or irrelevant to any matter at issue in the hearing 14.3 The panel of the Compliance Committee hearing a matter may at any time during a hearing direct that a witness be recalled for further examination in accordance with its direction 14.4 Where a witness appears unwilling or unable to give answers to the questions being posed, the panel of the Compliance Committee hearing the matter may permit the party calling the witness to examine him or her by means of leading questions. 15) DECISION OF COMPLIANCE COMMITTEE PANEL 15.1 The Compliance Committee panel s decision is either the unanimous or the majority decision of the members of the Compliance Committee panel hearing the matter Only the members of a Compliance Committee panel who were present throughout a hearing shall participate in the decision. 16) CORRECTION OF ERRORS 16.1 A Compliance Committee panel may at any time correct a typographical error, error of calculation or similar error made in its decision or order.

10 17) REQUEST FOR HEARING BY A MEMBER 17.1 Where a Member disputes the appropriateness of a requirement under sub-section 8 (c) or 8 (h) of Investigating a Matter of Part II of the Code, the Member must file with the I.C. Manager a written notice of dispute within fifteen (15) Business Days of the requirement being made, and the I.C. Manager must refer the matter to the Compliance Committee for a hearing Upon receipt of a written notice of dispute, the I.C. Manager will request a hearing at the next Compliance Committee meeting, or the I.C. Manager may at his or her discretion, request a hearing by special meeting or conference call to the Compliance Committee No evidence is admissible at a hearing resulting from a written notice of dispute pursuant to sub-section 9. of Investigating a Matter of Part II of the Code unless, in the case of the Member requesting the hearing, at least thirty (30) calendar days, and in the case of the Compliance Department. (I.C. Manager), at least fifteen (15) days, before the commencement of the hearing, the evidence has been given to every other party All other rules of procedures will apply to a hearing held resulting from a written notice of dispute. Steve Waugh Investigation & Compliance Manager P: (519) ext 8808 C: (519) F: (519)