15-502 - Procedures for Hearings before the Superintendent or a Delegate of the Superintendent
R.S.P.E.I. 1988, Cap-S-3.1
Document Type: Local Rule
Document No: 15-502
Subject: Procedures for Hearings before the Superintendent or before a Delegate of the Superintendent
Effective Date: December 22, 2012
Local Rule 15-502 Procedures for Hearings before the Superintendent or before a Delegate of the Superintendent
Part 1 Interpretation and Application
1.1 Definitions - In this Rule,
“Act” means the Securities Act R.S.P.E.I. 1988, Cap. S-3.1;
“applicant” means a person who makes an application, commences a proceeding or brings a motion;
“decision-maker” means the Superintendent or a delegate of the Superintendent before whom a proceeding is being conducted;
“electronic transmission” means transmission by facsimile or e-mail;
“enforcement proceeding” means a proceeding commenced by Staff;
“holiday” means a Saturday or Sunday and New Year’s Day, Good Friday, Easter Monday, Canada Day, Christmas Day, Victoria Day, Islander Day, Labour Day and any day appointed by any statute in force in Prince Edward Island or by proclamation of the Governor-General or of the Lieutenant-Governor as a general holiday within Prince Edward Island, and whenever a holiday other than Sunday falls on a Sunday, the word “holiday” includes the following day;
“party” means an applicant, a respondent, Staff or any person designated as a party by the Superintendent;
“pleadings” means the specific submission by which the allegations of parties to a proceeding are presented in proper form, specifically the statement of allegations of Staff and the response of the respondent plus any additional responses to those submissions that are authorized by law but excludes evidence tendered in the course of a proceeding;
“proceeding” means the entire process of a hearing or review conducted before the Superintendent pursuant to the Act;
“respondent” means the respondent in a proceeding;
“Secretary” means the person designated as Secretary to the Superintendent by the Superintendent;
“Settlement Agreement” means an agreement that is made under subsection 13(2) of the Act;
“Staff” means employees of the Department of Environment, Labour and Justice acting pursuant to the Act.
1.2 Application - This Rule applies to all proceedings before a decision-maker where the Superintendent is required under the Act or otherwise by law to hold a hearing or provide an opportunity to be heard.
1.3 Time - In this Rule, days between two events are counted by excluding the day on which the first event happens and including the day on which the second event happens; and if the time for doing an act under this Rule expires on a holiday, the act may be done on the next day that is not a holiday.
1.4 Document - In this Rule, references to the word “document” include but are not limited to a film, photograph, video tape, chart, graph, map, plan, survey, book of account, recording of sound, or information recorded or stored by means of any device.
Part 2 Construction and Variation
2.1 Construction - This Rule should be construed to secure the most expeditious and least expensive determination of every proceeding on its merits.
2.2 Variation of Rule - The purpose of this Rule is to provide certainty and consistency in the administration of proceedings. However, a decision-maker may waive or vary any provision of this Rule and may issue general or specific procedural directions at any time, if the decision-maker is of the opinion that to do so would be in the public interest or would otherwise be advisable to secure the just and expeditious determination of the matters in issue.
2.3 Extension of Time - Any time period prescribed by this Rule may be extended or abridged by the decision-maker.
Part 3 Parties
3.1 Appearance and Representation - In a proceeding, a party may appear on his or her own behalf, or may be represented by counsel.
3.2 Current Information - In a proceeding, when a person first appears or files materials on his or her own behalf, the person shall provide the Secretary with or otherwise state on the record, and keep current throughout the proceeding, the person’s name, address, telephone and facsimile numbers and e-mail address.
3.3 Service Upon Counsel - Counsel retained to represent a party in a proceeding shall immediately so advise the Secretary in writing and shall provide the Secretary with his or her address, telephone number, fax number and e-mail address as well as confirmation that he or she is authorized to accept service on behalf of the party. Counsel shall keep this information current throughout the proceeding.
3.4 Change in Representation - A party who is represented by counsel may change counsel or may elect to act in person by serving on the counsel, the Superintendent and every other party a written notice of the change of counsel or the intention to act in person and giving the name, address, telephone number, facsimile number and e-mail address of the party or the new counsel.
3.5 Withdrawal by Counsel - Counsel for a party in a proceeding may withdraw as counsel for the party only with leave of the decision-maker upon providing a written notice of withdrawal and serving it on the Superintendent, the party represented by the counsel and every other party. The written notice of withdrawal shall state, without disclosing any solicitor-client communication in which solicitor-client privilege has not been waived, all material facts and the reasons in support of the request for withdrawal.
Part 4 Service and Filing
4.1 Service - Any notice or document required under this Rule shall be sufficiently served if it is served by one of the following methods:
(a) personal delivery to the party;
(b) delivery to the party’s counsel;
(c) delivery to an adult person at the premises where the party resides, is employed or carries on business, or where the party’s counsel carries on business;
(d) if the party is a corporation, leaving a copy with an officer, director or agent of the corporation;
(e) sending to the party by prepaid mail or courier at the last known address of the party or the party’s counsel;
(f) sending by electronic transmission to the party or the party’s counsel; or
(g) such other manner as the decision-maker may direct or accept.
4.2 Date of Effective Service - Service is deemed to be effective when delivered:
(a) by personal delivery or by electronic transmission, on the date of delivery;
(b) by mail, on the seventh day after the date of mailing;
(c) by courier, upon receipt of confirmation of delivery; or
(d) by any other means authorized by the decision-maker, on the date specified by the decision-maker.
4.3 Proof of Service - Proof of service may be established by way of a sworn affidavit from the person who effected service, including particulars of the time, place and manner of service and, if the document was served personally, the basis upon which the identity of the person being served was ascertained.
4.4 Filing - A document required to be filed under this Rule may be filed by:
(a) personally delivering the original and five (5) copies (or another number if so directed by the Secretary) of the document to the offices of the Superintendent, marked to the attention of the Secretary;
(b) sending the original and five (5) copies (or another number if so directed by the Secretary) of the document to the offices of the Superintendent, marked to the attention of the Secretary, by registered mail or courier;
(c) provided the document is less than 15 pages in length, by transmitting a clear copy thereof by facsimile transmission to the attention of the Secretary; or
(e) such other manner as the decision-maker may direct.
4.5 Electronic Transmission - If a document is filed by electronic transmission, the original and required number of copies of the document must also be delivered to the Secretary forthwith.
4.6 Filing after 5:00 p.m. (Atlantic Time) - Documents filed after 5:00 p.m. shall be deemed to have been filed on the next day that is not a holiday.
4.7 Accompanying Information - A party who serves or files a document shall include with it the following information:
(a) the party’s name, address, telephone number, fax number and e-mail address;
(b) the name of the proceeding together with the file number to which the document relates; and
(c) if the party has counsel, the name, address, telephone number, fax number and e-mail address of counsel.
Part 5 Motions
5.1 When available - Preliminary, procedural and other issues relating to a proceeding which require resolution before a hearing on the merits, may be sought to be resolved by a party by way of a motion before a decision-maker.
5.2 Challenge of Jurisdiction - A challenge of a decision-maker’s jurisdiction shall be made by way of motion prior to a hearing on the merits.
5.3 Date for Hearing of a Motion - A party who intends to bring a motion before a decision-maker shall contact the Secretary, who may set a time and date for the hearing of the motion by the decision-maker.
5.4 Notice - The Secretary shall prepare a Notice of Hearing of Motion for the hearing of the motion and the party bringing the motion shall serve the Notice of Hearing of Motion on the other parties and, at least 10 days before the day the motion is to be heard, serve on the other parties motion materials containing written notice of the relief sought, the grounds for the motion and the evidence to be relied upon.
5.5 Evidence in Support of Motion - Evidence in support of a motion shall be by way of:
(a) sworn affidavit confined to
(i) facts within the personal knowledge of the deponent, and
(ii) statements as to the information and belief of the deponent, provided the source of the information and belief is stated;
(b) such other and further means as the decision-maker may direct.
5.6 Response - A party served with a Notice of Hearing of Motion, who intends to provide evidence in reply, must serve on the person making the motion and on all other parties an affidavits(s) in response, at least five (5) days before the day on which the motion is to be heard.
5.7 Ex Parte Motion - A decision-maker may permit a party to bring a motion without notice if the relief sought under the Act permits an ex parte motion or if the nature of the motion or the circumstances render service of a Notice of Hearing of Motion impractical or unnecessary or if the delay necessary to effect service might entail serious consequences.
5.8 Decisions on Motions - The decision-maker deciding the motion may issue the decision and reasons in writing or orally, by endorsing the record.
Part 6 Disclosure
6.1 Disclosure by Applicant - An applicant in a proceeding, including Staff in an enforcement proceeding shall, as soon as is reasonably practicable after service of a Notice of Hearing deliver to all respondents copies of all documents intended to be relied upon as evidence at the proceeding.
6.2 Disclosure by Respondent - A respondent shall, as soon as is reasonably practicable after service of a Notice of Hearing deliver to the applicant(s) and any other respondents, copies of all documents intended to be relied upon as evidence at the proceeding.
6.3 Privilege - No disclosure is required to be made of information which is protected by privilege.
6.4 Disclosure Order - At any stage in a proceeding, the decision-maker may order that a party:
(a) provide to another party and to the decision-maker any particulars that the decision-maker considers necessary for a full and satisfactory understanding of matters in issue in the proceeding; and
(b) make any disclosure required by this Rule within the time limits and on any conditions that the decision-maker may specify.
6.5 Failure to Disclose - A party who fails to make disclosure in accordance with this Part may not refer to the document or introduce it in evidence at the proceeding without leave of the decision-maker.
6.6 Common Law - Nothing in this Part derogates from Staff’s obligation to make disclosure as required by common law.
Part 7 Witnesses
7.1 Summons of Witnesses - The decision-maker may, at the request of a party or on the decision-maker’s own motion, summon a witness to attend a hearing and give evidence and/or produce documents.
7.2 Request for Summons - A party wishing to summon a witness must provide the Secretary with a completed Summons to Witness. The Summons will be executed by the Secretary and returned to the party for service upon the witness.
7.3 Conduct Money - At the time of service of the Summons to Witness, the witness shall be provided with conduct money in an amount equal to that paid to witnesses summoned to attend before the Supreme Court.
7.4 Witness List and Summaries - A party to a proceeding shall, at least 10 days before the scheduled date of a hearing, provide to every other party and to the Secretary a list of the witnesses the party intends to call to testify on the party’s behalf together with a summary of the evidence that the witness is expected to give.
7.5 Witness Summaries - A witness summary shall contain:
(a) the substance of the evidence of the witness;
(b) reference to any documents that the witness will refer to; and
(c) the witness name and address, or, if the witness address is not provided, the name and address of a person through whom the witness can be contacted.
7.6 Failure to Provide Witness Information - A party who fails to include a witness in their witness list or who fails to provide a summary of the evidence of a witness may not call that person as a witness without leave of the decision-maker.
7.7 Expert Witnesses - A party who intends to call an expert to give evidence at a hearing shall, at least 45 days before the scheduled date of the hearing, inform the other parties of the intent to call the expert and the issue on which the expert will be giving evidence.
7.8 Expert Witness Report - A party who intends to file a report by an expert shall, at least 45 days before the scheduled date of a hearing, provide to every other party a copy of the report signed by the expert containing:
(a) the name, address and qualifications of the expert;
(b) the substance of the expert’s evidence;
(c) the facts and documents forming the basis of the expert’s opinion and evidence; and
(d) a list of the documents, if any, to which the expert will refer.
7.9 Appointment of Experts by Decision-Maker - The decision-maker may, at any time, 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.
7.10 Swearing of Witnesses - Witnesses may give evidence under oath or solemn affirmation.
Part 8 Settlements
8.1 Available Any Time - Settlement discussions may occur at any time, and a Settlement Agreement can be entered into by parties to a proceeding at any time.
8.2 Settlement Agreement - A settlement shall be evidenced by a Settlement Agreement between Staff and a respondent or an applicant and signed by these parties. A Settlement Agreement shall contain:
(a) a full and accurate statement of the relevant facts admitted by the respondent;
(b) a joint recommendation on remedial or other order(s) to be imposed by the Superintendent;
(c) the parties’ consent to the remedial or other order(s) being made based upon the facts set out;
(d) an agreement with respect to the confidentiality of the Settlement Agreement pending approval by the Superintendent;
(e) subject to approval of the Settlement Agreement by the Superintendent:
(i) a waiver by the respondent of a full hearing and any review or appeal rights;
(ii) a commitment by Staff not to initiate further action in relation to the subject facts; and
(iii) an agreement by the parties not to make public statements that are inconsistent with the Settlement Agreement.
8.3 Approval Required - Any settlement requires the approval of the Superintendent pursuant to subsection 13(2) of the Act and has no legal effect until it has been so approved.
8.4 Approval Procedure - Upon receiving notification of a proposed settlement, the Secretary shall prepare a Notice of Settlement Hearing. Staff shall serve the Notice of Settlement Hearing upon the parties to the Settlement Agreement. A copy of the Settlement Agreement will be delivered by the Secretary to the Superintendent at least five (5) days in advance of the date set for the settlement hearing.
8.5 Confidentiality of Settlement Agreement - The Settlement Agreement shall not be made public prior to its approval by the Superintendent. Once approved, a Settlement Agreement may be published on the Superintendent’s website.
8.6 Where Settlement Agreement not Approved - If the Superintendent does not approve the Settlement Agreement, reasons may be provided at the request of a party to the Settlement Agreement, orally or in writing at the discretion of the Superintendent. The Settlement Agreement and the reasons for not approving the settlement, if any, shall not be made public unless all parties consent.
8.7 Further Settlement Negotiations - Failure to obtain approval of any Settlement Agreement does ot preclude the parties from completing a subsequent Settlement Agreement.
8.8 Reasons for Approval of Settlement - The Superintendent may, in his or her sole discretion, issue reasons subsequent to the Superintendent’s approval of a Settlement Agreement.
R.S.P.E.I. 1988, Cap-S-3.1
Document Type: Local Rule
Document No: 15-502
Subject: Procedures for Hearings before the Superintendent or before a Delegate of the Superintendent
Effective Date: December 22, 2012
Local Rule 15-502 Procedures for Hearings before the Superintendent or before a Delegate of the Superintendent (Continued)
Part 9 Pre-Hearing Conferences
9.1 When Available - After the issuance of a Notice of Hearing but prior to a hearing date, the decision-maker may, at the request of any party or on the decision-makers’ own motion, direct that the parties appear before the decision-maker or before another person delegated this function by the Superintendent, for a pre-hearing conference to consider:
(a) simplification of the issues;
(b) the possibility of obtaining admissions and agreements on documents and other evidence which may facilitate any hearing;
(c) the estimated duration of any hearing;
(d) the provision of directions by the decision-maker with respect to the conduct of any hearing; and
(e) any other matters that will promote fairness and efficiency.
9.2 Memorandum of Agreement - At the conclusion of a pre-hearing conference, the decision-maker or the person delegated the pre-hearing function by the Superintendent, may prepare a memorandum of the agreements reached, directions provided and any other matters resolved at the pre-hearing conference, and, if one is prepared shall provide each party with a copy thereof.
Part 10 Opportunity to be Heard Proceedings
10.1 When Available - The procedure in this Part applies to those provisions of the Act which require that the Superintendent extend an opportunity to be heard before making a decision.
10.2 Written or Oral Hearing - An opportunity to be heard can be exercised either through written submissions in accordance with Part 13, or by an oral hearing in accordance with Parts 11 and 12, at the discretion of the Superintendent.
10.3 Application to the Secretary - When Staff is seeking a decision of the Superintendent and the Act requires an opportunity to be heard by the Superintendent, Staff shall file an application with the Secretary which sets out the relief and remedies sought by Staff, the grounds for the application, and the evidence upon which Staff will rely.
10.4 Notice of Application - Upon receipt of the application by Staff, the Secretary shall issue a Notice of Application. The Notice of Application will provide notice:
(a) of Staff’s request for a decision in the matter set out in the application subject to the outcome of the person’s exercise of the right to be heard;
(b) that a person affected may exercise their right to be heard by making written submissions and/or requesting a hearing before the Superintendent;
(c) that the person affected must advise the Secretary within 15 days of the date of the notice that he/she wishes to be heard by the Superintendent with respect to the intended decision; and
(d) that if no response is received from the person affected within 15 days of the date of notice, a decision will be made without further notice.
10.5 Service of Notice of Application - Staff shall serve the Notice of Application, application and documents intended to be relied upon as evidence on all affected parties as soon as possible after the issuance of the Notice of Application.
10.6 Request to be Heard - If the Secretary receives notice that any party affected wishes to be heard, the Secretary will contact that party to ascertain whether they wish to make written submissions in accordance with Part 13 and/or request a hearing in accordance with Parts 11 and 12. The Secretary will then, in consultation with Staff, the Superintendent and the party requesting to be heard, set deadlines for written submissions and/or set a hearing date. If a hearing is to be held, the Secretary shall then issue a Notice of Hearing.
10.7 No Request to be Heard - If no affected party, after having been duly served, provides notice to the Secretary that they wish to be heard, a decision will be issued without further notice.
Part 11 Enforcement Proceedings
11.1 Statement of Allegations - Staff may commence an enforcement proceeding by filing a Statement of Allegations with the Secretary. A Statement of Allegations shall contain:
(a) a brief statement of the facts and allegations made against the respondent(s);
(b) any statutory provisions relied on; and
(c) the relief or penalty sought against the respondent(s).
11.2 Notice of Hearing - Once a Statement of Allegations has been filed by Staff, the Secretary shall assign a file number and issue a Notice of Hearing. A Notice of Hearing shall contain:
(a) the name of the respondent(s) to whom the notice is addressed;
(b) the time, date, place and purpose of the hearing;
(c) a caution that the hearing may proceed if the respondent(s) fail(s) to attend and that relief may be granted or penalties imposed in the respondent’s (s’) absence; and
(d) a provision that the respondent(s) may be represented by counsel.
11.3 Commencement - An enforcement proceeding commences when the Secretary receives a Statement of Allegations and assigns a file number.
11.4 Service of Notice - Staff shall serve the Statement of Allegations and Notice of Hearing as soon as possible on all the parties.
11.5 Response - Upon being served with a Statement of Allegations, a respondent must file a response with the Secretary which outlines:
(a) which of the allegations made by Staff that the respondent does not dispute;
(b) which of the allegations made by Staff that the respondent does dispute and on what basis; and
(c) any additional facts upon which the party relies in opposing the relief sought by Staff.
11.6 Identification of Non-Parties in Statement of Allegations - In order to preserve the privacy of non-parties referred to in a Statement of Allegations, the names and other identifying facts regarding non-parties must be replaced with alphabetical, numerical or alphanumeric characters that with respect to a name, are not the initials or an abbreviation of the non-party’s name or general descriptions. In such a case, the parties to the proceeding shall be provided with a confidential identification list, clearly identifying the replaced names and identifying facts, which shall be served with the Notice of Hearing and shall be kept strictly confidential.
11.7 Publication of Notice of Hearing - The Superintendent may publish the Notice of Hearing and Statement of Allegations, with the exclusion of any identification list, on the office of the Superintendent’s website.
Part 12 Proceedings Generally
12.1 Pre-hearing Submission - All parties to a hearing may file and serve upon all other parties a concise pre-hearing submission containing the relevant facts and applicable law and argument in support of a party’s position. A pre-hearing submission must be filed no later than five (5) days before the scheduled date of the hearing.
12.2 Agreed Statement of Facts - The decision-maker expects parties to agree on the evidence that is not in dispute and to file an Agreed Statement of Facts no later than five (5) days before the scheduled date of the hearing.
12.3 Recording of Evidence - All oral evidence at a hearing shall be taken down in writing or otherwise preserved as the decision-maker may direct.
12.4 Non-Appearance of Party - If a Notice of Hearing has been duly served on a respondent or any other person required to be served and the respondent or other person does not attend a hearing, the hearing may proceed in his or her absence.
12.5 Adjournment - The decision-maker may adjourn a hearing. A party seeking an adjournment must advise the decision-maker of the intent to do so as soon as practicable and should attempt to obtain the consent of the other parties to an adjournment and available dates for a later hearing.
Part 13 Proceedings in Writing
13.1 Consent Required - If the decision-maker and all parties agree, a proceeding may be dealt with by the decision-maker on the basis of written submissions made by the parties.
13.2 Content of Written Submissions - If a written hearing is agreed to, the applicant shall file with the Secretary, and serve upon all parties, a written submission containing:
(a) the grounds upon which the request for a remedy or order is made;
(b) a statement of facts relied on;
(c) the evidence relied on; and
(d) any law and/or argument relied on.
13.3 Respondent’s Submission - Upon receipt of the applicant’s written submission, a respondent may file with the Secretary, and serve upon all parties, a written response substantially in the same form as the applicant’s written submission.
13.4 Evidence - The evidence in a written hearing shall be in affidavit form or in such other form as the decision-maker may direct.
Part 14 Proceedings, Pleadings and Other Documents
14.1 Public Access to Documents - Subject to the provisions in Part 8 and to subsection 14.2, pleadings shall be available to the public. Other documents will remain confidential until the start of the hearing. The public may inspect pleadings during normal business hours at the Superintendent’s office or request copies upon payment of a $.25 per page copying charge.
14.2 Request for Confidentiality - On the application of a party or another interested person or on his or her own motion, the decision-maker may order that any document filed with the Secretary or any document received in evidence or any transcript or video or audio recording of a proceeding be kept confidential pursuant to subsection 26(2) of the Act.
14.3 Public Access to Proceedings - Subject to the provisions of Part 8 and to subsection 14.2, a hearing is open to the public unless the decision-maker orders that some or all of the hearing be held in private to protect a substantial and compelling privacy interest of one or more of the persons attending the hearing and that to do so would not be prejudicial to the public interest. While in the hearing room, anyone attending a hearing must turn off cellular phones, pagers and similar sound emitting devices which may interfere with the hearing.
14.4 Visual or Audio Recording - Visual or audio recording of any part of a hearing is not permitted except as directed by the decision-maker in accordance with subsection 12.3.
Part 15 Decisions
15.1 Issuance of Decisions - At the conclusion of a hearing or hearings in a proceeding, a decision-maker may reserve his or her decision or may indicate the decision-maker’s decision orally.
15.2 Reasons for Decision - The decision-maker shall issue reasons for his or her decision either at the same time as or subsequent to the issuance of the decision.
15.3 Interim Decision - Unless requested by a party, a temporary decision in a proceeding need not be accompanied by reasons.
15.4 Service of Decision - Decisions and accompanying written reasons, if any, will be served by Staff on every other party to the proceeding as soon as practicable after a decision has been rendered.
15.5 Publication of Decision - Decisions and accompanying reasons, if any, will be posted on the Superintendent’s website.
15.6 Proceedings on Sanctions - Unless the parties to a proceeding agree to the contrary, or if a respondent or respondents do not contest the proceeding despite receiving notice, a separate hearing shall be held to determine the matter of sanctions and costs. Following the issuance of the reasons for the decision on the merits, the Secretary shall set a date for a hearing on sanctions if such a hearing is necessary. The decision-maker may direct that a hearing on sanctions proceed in writing.
15.7 Submissions on Sanctions - Staff shall file submissions at least 10 days before a hearing on sanctions. Respondent(s) shall file submissions at least five (5) days before a hearing on sanctions and Staff shall file any reply submissions at least two (2) days before a hearing on sanctions.
Part 16 Further Decision or Revocation or Variation of a Decision
16.1 Application - An applicant for a further decision pursuant to subsection 64(9) of the Act or for an order revoking or varying a decision of a decision-maker pursuant to subsections 15(2) or (3) of the Act must serve on every other party to the original proceeding, and must file with the Secretary, an application:
(a) identifying the decision in respect of which the request is being made;
(b) stating the interest in the decision of the party filing the request;
(c) stating the factual and legal grounds for the request and the evidence in support of any factual grounds (new material or significant change in circumstances) to be relied upon not already before the decision-maker; and
(d) stating the relief sought.
16.2 Hearing on application - Upon reviewing the application filed in accordance with subsection 16.1, the decision-maker may:
(a) grant the application;
(b) refuse to grant the application;
(c) request written submissions from the parties in accordance with Part 13; or
(d) decide to hold an oral hearing in accordance with Parts 11 and 12 to consider the application.
16.3 New Evidence - If a party proposes to introduce new evidence in support of written submissions or at the oral hearing of the 16.1 application, the party must, at least 10 days before the deadline for filing written submissions or at least 10 days before the oral hearing, provide every other party with a copy of the new evidence and must deliver to every other party copies of any new document that the party will rely on.
Part 17 Effective Date
17.1 Effective Date - This instrument comes into force on December 22, 2012.
Dated at Charlottetown, Prince Edward Island, this _____ day of December, 2012.