Guidance on land-related compensation disputes

Contents

• Part 1. Introduction
  • 1.1. The Canada Energy Regulator and compensation disputes
• Part 2. Options for resolving a compensation dispute
  • 2.1. Negotiation with the company
  • 2.2. CER resolution options
  • 2.3. Requesting CER support for compensation disputes
    • 2.3.1. How can I request ADR services to resolve my compensation dispute?
    • 2.3.2. How can I request that the Commission decide my compensation dispute?
• Part 3. Adjudication overview
  • 3.1. Requesting a compensation dispute hearing
  • 3.2. Role of Commissioners
  • 3.3. Hearings
  • 3.4. Decision and factors considered by the Commission
  • 3.5. Costs and funding
  • 3.6. Review and appeals
• Part 4. Hearing process
  • 4.1. After the CER receives a compensation hearing application
    • 4.1.1. Preliminary comment process
    • 4.1.2. Exchanging records
    • 4.1.3. Pre-hearing conference
    • 4.1.4. Motions
  • 4.2. After the hearing order is issued
    • 4.2.1. Parties file and serve relevant evidence
    • 4.2.2. Other hearing documents
  • 4.3. Oral hearing
    • 4.3.1. Opening statements
    • 4.3.2. Examination and cross-examination of witnesses
    • 4.3.3. Final argument
  • 4.4. Close of record and decision
• Part 5. Exchanging and filing evidence
  • 5.1. What is the difference between exchanging records and filing evidence?
  • 5.2. When to file
  • 5.3. How to file
    • 5.3.1. Preparing documents
    • 5.3.2. Filing documents
    • 5.3.3. What is service?
• Part 6. Definitions

Part 1. Introduction

1.1. The Canada Energy Regulator and compensation disputes

This guide provides information on how the public can bring compensation disputes to the Canada Energy Regulator (CER) under Part 6, including sections 327 and 334, of the Canadian Energy Regulator Act (CER Act). This may include compensation for:

• the acquisition, lease or taking of lands by a company;
• lands whose use is restricted by the operation of section 335 of the CER Act, whether or not the lands were acquired, leased or taken; and,
• damages caused by the activities of the company which are directly related to: the acquisition or lease of lands for a pipeline or abandoned pipeline; the construction of the pipeline; or the inspection, maintenance or repair of the pipeline or abandoned pipeline.

For more information about section 335 of the CER Act, including the prescribed area, see the damage prevention section of the CER website.

In the event of a discrepancy or inconsistency between this guide and the CER Act and regulations, the latter prevail.

Part 2. Options for resolving a compensation dispute

2.1. Negotiation with the company

Parties (for example, a landowner and a pipeline company) are encouraged to work together to negotiate agreements on compensation (including impacts of construction, such as damages).

2.2. CER resolution options

If parties are unable to resolve a compensation dispute related to a project regulated by the CER amongst themselves, the CER can support resolution in two ways:

1. Alternative dispute resolution (ADR)
   • Parties use the CER’s ADR services to work together to resolve a dispute.
   • ADR is an interest-based approach to resolve disputes, facilitated by the CER’s ADR staff who are trained in dispute resolution.
   • ADR involves looking at different options with the goal of coming up with a mutually agreed upon solution outside of, or in parallel to, an adjudication process.
   • Information shared, including any disclosures made through the ADR process, is generally confidential and should not be placed on the CER’s public registry. Any settlement agreement reached is also confidential.
2. Decision by the Commission of the CER (adjudication)
   • When the CER receives an application regarding a compensation dispute, the Commission is required to determine such disputes about compensation payable under Part 6 of the CER Act.
   • The Commission has the powers necessary to decide your application, and will create steps to do so in a fair and efficient way through a formal hearing process.
   • Any party can request that the Commission make a decision on its compensation dispute.
   • All hearing documents are placed on the CER’s online public registry, also known as REGDOCS.

Note that parties can request the CER’s ADR services at any time. ADR may be used before, or at the same time, as adjudication (i.e., a formal hearing). In situations where ADR happens in parallel to a hearing, parties may withdraw from the hearing if agreement is reached.

Can you participate in either official language?

Yes, you can participate in either English or French. The Commission conducts English, French, and bilingual hearings, depending on the official language choices of the participants. ADR processes can also be conducted in either official language. When you contact the CER, let them know your preferred official language.

The table below briefly summarises the key characteristics of ADR and adjudication regarding compensation disputes.

Table 1: Use of ADR and adjudication for compensation disputes

To learn more about using the CER’s ADR service to resolve your compensation dispute, see the ADR page on the CER’s website.

More information about the Commission’s hearing process to decide a compensation matter is below.

2.3. Requesting CER support for compensation disputes

The CER recommends ADR as an option to resolve a dispute before considering adjudication.

2.3.1. How can I request ADR services to resolve my compensation dispute?

To request ADR, you can send a letter to the Secretary of the Commission. This letter must include your contact information, a short summary of your request, and the name of the other party (for example, the name of a company with which you might have a compensation dispute). This letter can be emailed to secretary@cer-rec.gc.ca, or mailed to the Secretary at

• Secretary of the Commission
  Canada Energy Regulator
  210-517 10 Ave SW
  Calgary AB  T2R 0A8

It is important that your email or letter include “Request for ADR” in the subject line.

Within 10 calendar days of receiving the request for ADR, the CER will contact you to confirm receipt and provide information on next steps.

2.3.2. How can I request that the Commission decide my compensation dispute?

Part 3 of this guide has information on how to request that the Commission decide your compensation dispute, including a link to the compensation hearing application form.

Part 3. Adjudication overview

Adjudication, or a hearing, is a court-like process. Parties can present evidence^Definition* and arguments^Definition* in support of their respective positions, and test the evidence of opposing parties. The Commission hears all the evidence and arguments from parties, considers what is relevant and makes a decision.

Compensation dispute hearings are only available for those who are entitled to compensation under Part 6 of the CER Act. This includes compensation for:

• the acquisition, lease or taking of lands by the company;
• lands whose use is restricted by the operation of section 335 of the CER Act, whether or not the lands were acquired, leased or taken; and
• damages caused by the activities of the company which are directly related to: the acquisition or lease of lands for a pipeline or abandoned pipeline; the construction of the pipeline; or the inspection, maintenance or repair of the pipeline or abandoned pipeline.

For ideas on how to document damages, see the Land Agreements page in the Land Matters Guide on the CER website.

3.1. Requesting a compensation dispute hearing

To request a compensation dispute hearing, you must complete and file a compensation hearing application with the CER. Download the compensation hearing application form (English [PDF 266 KB] / French [PDF 294 KB]) from the CER website, or call 1 800 899 1265 (toll free) or email info@cer-rec.gc.ca to request a copy.

Instructions on how to file the application are included on the compensation application form. All documents filed with the CER are placed on REGDOCS, the CER’s online regulatory database and become part of the public registry. This means that these documents can be viewed online by anyone.

It is important that the compensation hearing application form is filled out in detail.

If significant information is missing from the compensation hearing application, it may result in delays to your hearing or the Commission may dismiss your application.

Do you need a representative to submit an application?

It is your decision whether to hire a lawyer or other representative to participate in a compensation hearing or any other CER process. Note that the CER cannot give you (or parties) legal advice and the Commission will base its decision on the relevant information you submit to the CER. Well-organized and clear filings will help the Commission understand your position.

Hearings are reasonably formal and parties are expected to learn how the process works and act appropriately. There are requirements associated with hearings, as described in more detail in Part 4 of this guidance document. All parties are expected to carefully read the hearing order^Definition* and this guidance document to fully understand how the compensation hearing will unfold.

3.2. Role of Commissioners

In a hearing, one or more Commissioners will be assigned to assess all of the evidence and arguments that are submitted on the application, and may ask you or the respondent (the one you have a dispute with) questions. The Commission will consider the relevancy of all the evidence and arguments before making a decision. Commissioners are also responsible for setting out the hearing process.

The Commission will normally consider compensation matters separately from other related applications. For example, a compensation dispute may relate to the acquisition of land rights required by a company in order to build new pipeline facilities. In this example, the company may have already applied to the Commission for an order or certificate permitting it to construct the proposed pipeline facilities. A compensation hearing would be heard separately from the facilities application.

3.3. Hearings

If you file a compensation application under Part 6 of the CER Act, and if the matter is within the Commission’s mandate, the Commission will announce a hearing and issue a process letter, or a document called a hearing order. A hearing order typically includes a brief description of the application, the list of issues that will be considered, as well as details on the hearing steps and the schedule (timing and deadlines) for those steps.

Is the hearing order important?

It is important that you review the hearing order because it will list the steps and provide information specific to your hearing, including the list of issues and timelines to follow.

Compensation hearings are usually oral hearings and include steps such as oral cross-examination^Definition* or oral argument, which may be in person or virtual. The date, location, and time of the oral portion of the hearing may be shared in a hearing order if these details are known. You or the respondent can ask the Commission to change the hearing process and such requests will be assessed on a case-by-case basis.

Will you need to travel to attend a hearing?

Hearings can be held in-person or virtually using available technology. In-person hearings may take place at a location near those who are participating, or at the CER Hearing Room in Calgary. The decision on where to hold the hearing is made by the Commission.

In some cases, a compensation hearing could be conducted in writing only. In these cases, evidence and argument would be filed on the record. Questions to the other party would be asked and answered in writing, and the Commission would make a decision based on those documents. The hearing order will tell you what kind of hearing to expect and what steps are required.

The CER may assign process advisors to support the parties, such as answering any questions about the CER’s hearing process and explaining the different roles in a hearing. The Commission will provide information on any resources that are available to assist with hearing-related questions, including whether process advisors have been assigned to the hearing. See Part 6 of this guide for more information on process advisors.

Part 4 of this guide provides more information on the typical steps in a compensation hearing process.

Can you continue to negotiate with the company or participate in ADR once a hearing starts?

Yes. Parties are encouraged to continue to make efforts to resolve the dispute and negotiate terms either privately or using the CER’s ADR services even if a hearing process is underway. Parties can ask for extensions to hearing timelines if required for the purposes of their discussions. If the parties reach an agreement on all or part of the compensation claim, they should advise the Commission in writing.

For more information on ADR, see the ADR page on the CER’s website.

3.4. Decision and factors considered by the Commission

The Commission will decide compensation matters on a case-by-case basis and will consider the relevant evidence and arguments submitted by all parties regarding the dispute. The Commission will publicly issue its decision with reasons following a hearing.

Part 6 of the CER Act governs compensation applications and hearings. For example, the CER Act sets out a list of factors that the Commission will consider in the appropriate circumstances in subsection 327(2) of the CER Act:

• market value of lands (this is defined in subsection 327(3) of the CER Act);
• changes to periodic payments as a result of changes to market value of the lands;
• the loss of use of the lands taken by the company or whose use is otherwise restricted by the operation of section 335 of the CER Act;
• adverse effect of the taking of the lands by the company on the remainder of the lands, including by restricting their use by the operation of section 335 of the CER Act;
• nuisance, inconvenience and noise in connection with the operations of the company;
• damage to lands caused by the operations of the company;
• loss of or damage to livestock or other personal property or moveable affected by the operations of the company;
• special difficulties in relocation of an owner or their property;
• any other factors that the Commission considers appropriate; and
• other prescribed factors that are prescribed under paragraph 333(e) of the CER Act.

3.5. Costs and funding

There is no participant funding available for CER compensation hearings.

The Commission may, and in some cases must, order the company to pay some or all of the legal, appraisal and other costs reasonably incurred for a compensation hearing, as stated in section 330 of the CER Act:

• If the Commission awards a person compensation for more than 85% of the amount offered by the company, costs are mandatory; that is, the company must pay all legal, appraisal and other costs reasonably incurred by that person.
• If the Commission awards a person compensation for 85% or less of the amount offered by the company, costs are discretionary; that is, the company or any other party may be ordered by the Commission to pay some or all of the person’s reasonably incurred costs.

Only reasonably incurred costs are payable. In assessing whether costs are reasonable, the Commission may consider factors such as the type of cost, the rates, and whether the costs incurred assisted the Commission in reaching its compensation determination. The Commission may seek additional submissions from the parties before determining costs.

3.6. Review and appeals

The Commission may be asked to review, vary, or rescind its own decision pursuant to section 69 of the CER Act. Parties involved in the compensation proceeding can ask the Commission for a review but only if specific requirements are met. These requirements are listed in section 44 of the National Energy Board Rules of Practice and Procedure, 1995 (Rules). If the Commission decides to hold a review, it may ask for input from people interested in the review application, and may hold a hearing.

Decisions made by the Commission may also be appealed to Canada's Federal Court of Appeal on a point of law or jurisdiction if the Court grants permission (or leave) to appeal, as stated in section 72 of the CER Act. A party seeking permission to appeal (or leave to appeal) must file an application with the Federal Court of Appeal, typically within 30 days following the CER decision.

Part 4. Hearing process

Each hearing is unique and the Commission will provide detailed instructions when a hearing order^Definition* is issued. Typically, a hearing will involve some or all of the following processes. More information on these processes is included below.

4.1. After the CER receives a compensation hearing application

When the CER receives your compensation hearing application, the CER will contact you within 10 calendar days to confirm receipt and provide information on next steps, which may include a preliminary comment process, deadlines for next steps, and an invitation to participate in ADR.

4.1.1. Preliminary comment process

Typically, after a compensation hearing application is filed, the CER will establish a preliminary comment process. The process provides the respondent^Definition* an opportunity to file any preliminary comments on the application, and provides you with an opportunity to file any comments in response to the respondent’s comments.

The CER may invite you and the respondent (together, the parties) to a pre-ADR meeting. See the ADR page on the CER’s website for information on pre-ADR meetings.

4.1.2. Exchanging records

The CER may set deadlines and a process for exchanging records^Definition* with the other party. This is an opportunity to make sure that both parties understand the information that the other is relying on – so that all perspectives on the dispute can be better understood. Doing this may also assist in negotiations and the possibility of settlement on some or all issues.

4.1.3. Pre-hearing conference

The Commission may schedule a pre-hearing conference, usually held virtually or via teleconference. The purpose is to seek feedback from the parties and could include:

• setting the date and location for the hearing;
• clarifying the dispute and issues that will proceed to hearing;
• setting dates, in advance of the hearing, for the parties to exchange evidence^Definition*, including documents or expert reports^Definition*, and to file them with the CER;
• setting dates for the parties to provide lists of witnesses^Definition* and/or summaries of witness evidence;
• setting dates for parties to provide arguments^Definition*;
• making any other orders for the fair and efficient conduct of the hearing; and/or
• providing procedural or other information to the parties.

4.1.4. Motions

At any time after an application is filed, if parties want to ask the Commission to do something, such as change a deadline in the hearing order, they must file a request (referred to as a notice of motion^Definition*), the requirements of which are outlined in section 35 of the Rules. If you want to file a notice of motion, you should read this section of the Rules. Notices of motion should be filed as soon as possible after a party recognizes that one is needed, as last-minute notices of motion may cause unnecessary delays in the hearing schedule.

In general, to file a notice of motion, the party making the request must prepare a concise letter explaining their request, why they believe the Commission should grant it, and outline supporting facts, including any impacts on the other party. The notice of motion must be filed with the CER and served^Definition* on the other party.

As stated in the Rules, after a party receives a notice of motion, they have 10 days to respond. The response must be in writing and clearly explain the party’s position on the motion. Then, the party who filed the motion has another 5 days to provide any written reply to that response. In some cases, the Commission may set out different timelines.

A motion may be made at any time after the compensation application is filed. It is possible to raise a motion during an oral hearing as well, in which case it can be made orally.

4.2. After the hearing order is issued

The Commission will typically issue a process letter or a hearing order after the preliminary steps – that is, once the application is received and the parties have provided their preliminary comments. The hearing order describes the process, sets filing deadlines, and provides any special instructions.

4.2.1. Parties file and serve relevant evidence

The Commission requires evidence to make decisions on compensation applications. For example, if a landowner seeks compensation from a company for damaging their property, they need to provide evidence that demonstrates the company’s activities caused the damage and the cost of that damage. The company may in turn provide evidence that it did not cause the damage or that the amount sought does not reflect the actual cost.

Hearing orders typically provide information about when and how to file and serve^Definition* evidence, including specifying when and how different types of evidence can be used in a particular hearing. Evidence must be filed with the CER so that the Commission has a record to consider when making its decision. Evidence must be served on the other party, so that both parties know what evidence the other is relying on to make its case. More information about filing and serving is provided in Part 5 of this guidance document.

Parties may include an expert report^Definition* with their evidence, such as an appraisal of the land value or business valuation losses. The hearing order will typically specify when any expert reports should be filed and served, in order to give the other party a chance to review and respond to the report.

Only evidence that is relevant and necessary to determine the issues in dispute should be filed. Parties may exchange more documents in the preliminary process after an application is filed, but some of those documents may be relevant only to issues that the parties have already settled or are not needed for either party to support their position. In that case, those documents do not need to be filed. Note that documents are filed on REGDOCS^Definition* and are available for anyone to see.

It is very important to respect deadlines set by the Commission to file and serve your evidence. If a party does not file and serve their evidence by deadlines established by the Commission, they may not be permitted to rely on it as evidence. In order to file more evidence after the deadline has passed, a party would have to bring a motion^Definition* (see Part 4.1.4) and request permission from the Commission.

Is there information that should not be filed?

Note that certain information and records^Definition* must not be filed with the CER; these include information and records subject to solicitor-client privilege or settlement privilege. For example, settlement discussions and information disclosed through the CER’s ADR process – being generally confidential and subject to settlement privilege – cannot be raised in a hearing unless both parties otherwise agree.

4.2.2. Other hearing documents

The Commission may also ask parties to file other documents that help organize and explain their evidence in preparation for the hearing. The deadlines for these documents may be included in the hearing order or other process letter.

The parties may be asked to provide a statement of facts^Definition* to explain what happened and how the evidence is relevant. This document may include a list of exhibits^Definition* that provides the list of all evidence filed with the CER (see Part 4.2.1).

Parties may work together to develop an agreed statement of facts and/or an agreed list of exhibits^Definition*, so that the Commission knows what they agree on. This saves time, because the parties do not need to further explain facts that are not in dispute. Only those facts and issues where the parties disagree need to be explored at the hearing. The agreed list of exhibits helps avoid duplication, so that everyone is looking at the same version of a record.

The parties may also be asked to provide a list of witnesses. This is a list of all the witnesses that a party intends to have at the oral hearing, as well as a short description of why they will testify. For example:

• a landowner may attend to describe the land involved in the dispute; and
• an expert^Definition* may attend to answer questions about their expert report.

This list is important so that the other party can prepare and decide who they want to question and what questions to ask.

To help the Commission decide your compensation application, you may want to draw attention to parts of the CER Act, prior decisions of the Commission or of other courts and tribunals, or other legal principles. This is done by filing a book of authorities, which attaches all legal authorities that a party intends to rely on (with relevant passages highlighted) and should include a table of contents so the Commission can locate the relevant passage easily.

4.3. Oral hearing

After the parties have exchanged and filed their evidence, the oral hearing is the opportunity to present the evidence to the Commission and explain, through argument, what decision you want the Commission to make. In-person or virtual hearings are formal and parties are expected to act appropriately. Parties may represent themselves or have an agent or lawyer represent them.

One or more Commissioners will be assigned to preside over the hearing. They will start the hearing with introductions, a description of how they expect the hearing to proceed, and invite any preliminary matters (e.g., any motions^Definition* that arose shortly before the start of the hearing).

A typical oral hearing includes the steps listed below. For most steps, the applicant^Definition* (you) will go first, the respondent^Definition* will go next, then the applicant will have a chance to reply to the new information or argument that the respondent raised.

1. Opening statements
   1. Applicant
   2. Respondent
2. Evidence of applicant’s witnesses^Definition*
   1. Applicant witnesses provide evidence (through direct examination^Definition*)
   2. Respondent asks questions to the witnesses (cross-examination)
   3. Witnesses may provide further evidence to clarify answers given to the respondent
3. Evidence of respondent’s witnesses
   1. Respondent witnesses provide evidence (through direct examination)
   2. Applicant asks questions to the witnesses (also called cross-examination)
   3. Witnesses provide further evidence to clarify answers given to the applicant
4. Final argument
   1. Applicant
   2. Respondent
   3. Applicant may reply to any new issues raised by the Respondent

4.3.1. Opening statements

An opening statement is an opportunity to present a brief summary of a party’s position about the dispute, including a summary of the evidence and/or the issues before the Commission. The applicant presents their opening statement first, followed by the respondent.

4.3.2. Examination and cross-examination of witnesses

Examination of witnesses is the opportunity to help the Commission understand the dispute from the perspective of each witness. A witness can be anyone who has personal knowledge of relevant facts, including the parties themselves. If expert witnesses^Definition* are called, they may be asked to explain their expertise, what they learned about the situation, and their opinion. Expert witnesses may be cross examined on their evidence and on their filed expert report.

Typically, each witness will follow this sequence:

• oath or affirmation^Definition*;
• direct examination^Definition*;
• cross-examination^Definition*; and
• if needed, questions arising from the cross-examination.

After the parties are finished asking questions, the witness will be excused, and the next witness can be called.

When a witness is called, they will first be asked to swear or affirm that they will tell the truth. They will then be asked questions, which could include being asked to describe what happened or to explain what a document is and how it is relevant to the dispute. Where a party is representing themselves and presenting evidence, they will take the stand, swear or affirm, then proceed to explain their evidence. The other party will then cross-examine them.

Parties ask questions of their own witnesses to help them explain the facts that they personally know and any evidence that supports those facts (direct examination). Cross-examination is the opportunity to ask questions of the other party’s witnesses to clarify or challenge their evidence.

During a hearing, the Commission may also ask the witnesses questions as it seeks the information it needs to make a transparent, fair, and objective decision.

4.3.3. Final argument

The Commission may ask the parties to present their final argument at the oral hearing, or afterward in writing. This is the last opportunity for parties to explain their position on the compensation application and to try to persuade the Commission to decide the matter in their favour. New evidence cannot be submitted during final argument, and the parties cannot ask questions of one another, though the Commission may ask questions of them.

Final argument is an opportunity for each party to:

• summarize its evidence regarding the compensation application;
• argue about the relevance and weight of any evidence that is before the Commission, including views in relation to the other party’s evidence;
• summarize its arguments, including explaining how legal principles governing compensation claims apply to the specific facts of the case; and
• describe any relief being requested from the Commission.

4.4. Close of record and decision

The record is closed after final argument, which means that no further submissions or evidence will be accepted. Once final argument is complete, the Commission will consider all the relevant evidence on the record and arguments before making its decision. The Commission will publicly issue its written decision with reasons. A copy will also be provided to the applicant and the respondent.

Part 5. Exchanging and filing evidence

5.1. What is the difference between exchanging records and filing evidence?

Parties are encouraged to work together to negotiate agreements on compensation both before filing an application and afterwards. Once an application is filed, the parties may continue to work together to decide which issues they can resolve themselves and which issues they want to put to the Commission.

In the process of working together, the parties may exchange records^Definition* that they believe are relevant to the issues in question. This exchange can occur in any method that works for both parties (e.g., by email or hardcopy) and does not necessarily involve the CER or REGDOCS^Definition*.

Filing evidence with the CER is done after the hearing order^Definition* is issued, according to the timeline set out in the hearing order. At this step, the parties must file the relevant evidence on the record and make sure that the other party has a copy of that evidence. The Commission can only consider evidence that is filed on the record through REGDOCS. If the parties exchanged records that are not needed for the issues that they want the Commission to decide, those records do not need to be filed.

5.2. When to file

The Commission will typically direct the parties to file information by a specific deadline, usually in the hearing order or other procedural letter. Deadlines are set to provide fairness, efficiency, and certainty to all those involved. On a particular deadline, unless directed otherwise, the Commission must receive documents by 4:00 pm Mountain time.

Late filings will not be accepted, except with the Commission’s permission. If you cannot meet a deadline, you must file a notice of motion^Definition* requesting an extension sufficiently in advance of the deadline (see Part 4.1.4 of this guidance document). Any such request must include:

• the reason why the deadline cannot be met;
• what value the filing will provide;
• your views as to whether the other party could be disadvantaged or prejudiced as a result of the late filing; and
• any other relevant information that you want the Commission to consider.

The Commission may seek comments on the request prior to deciding on it.

5.3. How to file

5.3.1. Preparing documents

All documents filed online must be in PDF format, with all pages numbered. All filings must refer to the file number and the hearing number. PDF files up to 20 MB can be uploaded to REGDOCS^Definition*, so you may wish to compile your documents into a single PDF file. If you have many documents, consider including a numbered list of documents for easy reference.

Address all document(s) to the proper participant. Filings directed to the Commission (e.g., written evidence, notices of motion) should be addressed to the Secretary of the Commission at the address provided in Part 2.3.1 of this guidance document.

If referring to information from a website, do not simply provide the website links. Links may change over time and the record of that information may be lost. Instead, provide the actual information being referred to and the date the information was taken from the website.

5.3.2. Filing documents

The CER’s preferred method of filing to REGDOCS^Definition* is through its e-filing tool. The e-filing system offers step-by-step guidance and instructions. If more information is required, consult the e-filing tool’s Filer's Guide to Electronic Submission [PDF 606 KB].

If the file size exceeds the limit, the CER is able to receive video media stored on physical devices, such as USB memory sticks or DVDs. Physical devices should be mailed to the Secretary of the Commission (or couriered or delivered by hand) at the address listed in Part 2.3.1 of this guidance document.

Once you have filed your document(s) using the e-filing tool, you will receive two emails:

• a filing receipt where you can verify your attachments; and
• important instructions, including a reminder to serve your filing on the other party (unless otherwise directed) and to provide the CER with the necessary hard copy(ies).

5.3.3. What is service?

Service means giving the other party either physical hard copies of documents or, where the document has been submitted electronically, a notification. Notification means providing, to a person who is to be served with a document, a notice that the document has been filed with the CER’s online public registry (REGDOCS).

The responsibility for service rests with the person filing the document. Service of a document will be satisfied by:

1. Serving the other party (and their authorized representatives) a hard copy of the document at the time of or immediately after you file information with the CER; or
2. Where the document has been submitted electronically (i.e., using the CER’s e-filing tool) and the party to be served has indicated that it has the capacity to access REGDOCS, serving a notification that the document is available for retrieval from REGDOCS.
   • Using the CER’s e-filing tool, under Step 7 (“Courtesy Copies”), you may enter up to 10 email addresses that you wish to have the system automatically notify when you complete your filing.
   • Alternatively, you can forward the email acknowledgement you received when you made your submission.

Important: The CER advises filers to exercise caution when using e-mail for service of documents or notification, as it may be difficult to confirm that service has occurred.

Part 6. Definitions

Affidavit
A written declaration of facts, which is formally sworn or affirmed to be true and correct. The affidavit may have documents attached as exhibits. An affidavit must be properly sworn, filed and served on other parties. An affidavit can be accepted by the Commission as evidence and the opposing parties can cross-examine the affiant (the person who signed the affidavit) under oath about the contents of the affidavit.

Applicant
The party who filed the Compensation Application with the CER requesting adjudication of the compensation dispute.

Argument
A party’s opportunity to explain their views regarding the compensation hearing application to the Commission and to try to persuade the Commission how the evidence and law supports those views.

Book of authorities
The legal authorities, such as case law and legal texts that a party intends to rely on in the hearing. This will usually include a list of all the authorities that support the party’s position.

Cross-examination
When one party asks questions of the other party’s witness, to better understand or to challenge their evidence. This will typically be done in an oral hearing, but could also occur in writing if directed by the Commission.

Direct examination
When parties ask their own witnesses to explain the facts that they personally know and any evidence that supports those facts.

Evidence
Information directly supporting a claim. There are different types of evidence:

Expert witness, expert evidence, expert reports

• Expert witness: A person who, through education, skill or experience, is qualified to provide specialized scientific, technical, or other information, including their opinions about the evidence or facts at issue.
• Expert evidence / expert report: Expert witnesses typically provide evidence in the form of a report containing their expert opinions on the issues asked of them. The report should also include the information that the expert reviewed in forming their expert opinion, as well as their curriculum vitae (CV).
  
  The CV allows the Commission and parties to understand that expert’s capability to provide specialized knowledge with respect to the topics for which they are providing evidence. If a CV is not filed with a report or if an expert is shown to not be qualified, the Commission may decline to accept evidence provided by the expert or may assign less weight to their testimony.

Hearing order
A hearing order is a procedural document that may include a brief description of the application, the list of issues to be considered, as well as the timing and any further details on the steps in the hearing process and the schedule.

List of exhibits
Exhibits are the records entered as evidence and referred to and relied on by a party. A list of exhibits by a single party is an inventory of their exhibits. An agreed list of exhibits is developed together by the parties and is an inventory of the exhibits the parties have in common. Filing an agreed list of exhibits does not prevent a party from filing its own list of exhibits.

List of witnesses
A list of all witnesses the party intends to have at the oral hearing, as well as a short description of what they will say. No party may present a witness whose name and summary of evidence was not included in the list of witnesses filed prior to the oral hearing, unless the Commission gives permission first.

Motion
Motions are formal requests that require the Commission to make a decision or issue an order. A motion can be filed in writing with a notice of motion, or raised orally during an oral hearing. After hearing a motion, the Commission may decide to grant or deny the motion, or it may ask parties for their comments before making a decision. The Commission may also offer the person making the motion a right of reply.

Oaths / affirmations
Witnesses must swear an oath or make an affirmation that their evidence will be the truth. Whether a person swears an oath or affirms to tell the truth, the person is bound by conscience and law to tell the truth.

Process Advisor
The CER may assign a process advisor to a compensation hearing to support the parties. A process advisor can answer your questions about the compensation hearing process and provide support with how to file documents. However, a process advisor cannot file or serve documents on your behalf; interpret the evidence for you; tell you what information you should give to the Commission; tell you how to best present your information; write your questions or evidence; talk to the Commission on your behalf; or talk to the respondent on your behalf.

REGDOCS
The CER’s online public registry. It is the collection of publicly accessible documents that are filed onto the legal record for hearings or other written regulatory proceedings.

Respondent
The party who responds to the application, it is the person with whom the applicant has a dispute.

Service
Refers to the process of how materials are provided to other parties. Each party must provide a copy of its filings to the other party, or a notification in the case of e-filing, and be able to verify that the other party received the materials.

Statement of facts
A party’s summary of facts relevant to the dispute, with references to specific evidence supporting those facts. An agreed statement of facts is a summary of information already agreed upon by the parties and not in dispute.

Witness
Someone who provides evidence at the hearing.

Date modified:

2024-02-28