Vol. 145, No. 21 — May 21, 2011

ARCHIVED — Public Servants Disclosure Protection Tribunal Rules of Procedure

Statutory authority

Public Servants Disclosure Protection Act

Sponsoring agency

Public Servants Disclosure Protection Tribunal

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Description

The Public Servants Disclosure Protection Act (S.C. 2005, c. 46) [the Act] empowers the Chairperson of the Public Servants Disclosure Protection Tribunal (the “Tribunal”) to make rules of procedure governing the practice and procedure before the Tribunal.

The Public Servants Disclosure Protection Tribunal Rules of Procedure (the “Rules”) facilitate the way complaints relating to reprisals referred by the Public Service Integrity Commissioner (the “Commissioner”) will be dealt with by the Tribunal. The Rules prescribe the practice and procedure before the Tribunal, in relation to the following: application by the Commissioner, filing and service, addition of interested persons, motions, discovery, pre-hearing conferences, summoning of witnesses, and hearing and evidence. In keeping with the Act, the Rules have been designed to allow proceedings to be conducted as informally and expeditiously as the requirements of natural justice.

The Rules will provide complainants, the Commissioner, federal departments and agencies and other persons who participate in the Tribunal’s proceedings with predictable rules of procedure.

Alternatives

Subsection 21(2) of the Act empowers the Chairperson of the Tribunal to make rules of procedure governing the practice and procedure before the Tribunal. The Rules will assist the Tribunal to proceed efficiently with complaints relating to reprisals that have been referred by the Commissioner. Further, the Rules will provide complainants, the Commissioner, departments and agencies and other persons who appear before the Tribunal with accessible regulations that ensure predictability and fairness in proceedings before the Tribunal. The Rules are the most appropriate instrument to provide a legally enforceable mechanism upon which parties can rely.

Benefits and costs

The Rules relate solely to the Tribunal’s practices and procedures. No additional costs to the Government or to those covered by the Rules are expected. Additional resources are not necessary to ensure compliance and enforcement.

Consultation

During the development of the Rules, the Tribunal established a consultation group composed of the Office of the Public Service Integrity Commissioner, the Department of Justice, the Treasury Board Secretariat, the Public Service Alliance of Canada and the Professional Institute of the Public Service of Canada. Additionally, as required by subsection 21(3) of the Act, the consultation group included representatives of the Royal Canadian Mounted Police. The consultation group met from October 2007 to February 2008. A draft of the Rules was then presented to the members of the Tribunal. At that time, the first Chairperson of the Tribunal left his position. A new Chairperson was appointed in June 2010. The new Chairperson reviewed, amended and approved the Rules.

Compliance and enforcement

The Rules will be administered by the Tribunal in accordance with the principles established in the Act.

Contact

Interested persons may make representations to

Jean-Charles Ducharme
Senior Legal Advisor
Public Servants Disclosure Protection Tribunal
90 Sparks Street, Room 512
Ottawa, Ontario
K1P 5B4
Telephone: 613-943-8312
Fax: 613-943-8325
Email: Jean-Charles.Ducharme@psdpt-tpfd.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given, pursuant to subsection 21(4) (see footnote a) of the Public Servants Disclosure Protection Act (see footnote b), that the Chairperson of the Public Servants Disclosure Protection Tribunal, pursuant to subsection 21(2) (see footnote c) of that Act, proposes to make the annexed Public Servants Disclosure Protection Tribunal Rules of Procedure.

Interested persons may make representations concerning the proposed Rules within 15 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Jean-Charles Ducharme, Senior Legal Advisor, Public Servants Disclosure Protection Tribunal, 90 Sparks St., Room 512, Ottawa, ON K1P 5B4 (tel.: 613-943-8312; fax: 613-943-8325; email: Jean-Charles.Ducharme@psdpt-tpfd.gc.ca).

Ottawa, April 29, 2011

LUC MARTINEAU
Chairperson of the Public Servants Disclosure
Protection Tribunal

PUBLIC SERVANTS DISCLOSURE PROTECTION TRIBUNAL RULES OF PROCEDURE

INTERPRETATION

Definitions

1. The following definitions apply in these Rules.

“Act”
« Loi »

“Act” means the Public Servants Disclosure Protection Act.

“file”
« déposer »

“file” means to file with the registrar.

“interested person”
« intervenant »

“interested person” means a person that is added to the proceedings in accordance with these Rules.

“registrar”
« registraire »

“registrar” means the registrar of the Tribunal referred to in subsection 20.8(2) of the Act.

GENERAL

Liberal interpretation

2. These Rules must be liberally interpreted, with the aim of ensuring that the proceedings are conducted informally and expeditiously and that the rights of the parties set out in subsection 21.6(1) of the Act are respected.

Dispensing with or varying Rules

3. The Tribunal may vary a Rule, or dispense with compliance with a Rule, if doing so advances the aims set out in Rule 2.

Time limits

4. If a time limit under these Rules or under an order of the Tribunal ends on a Saturday, or a holiday as defined in subsection 35(1) of the Interpretation Act, it is extended to end on the next day that is not a Saturday or a holiday.

APPLICATION BY THE COMMISSIONER

Content

5. An application by the Commissioner under subsection 20.4(1) of the Act is made when the application is filed. An application must contain the following information and documents:

• (a) identification of the orders referred to in paragraphs 20.4(1)(a) and (b) of the Act that the Commissioner is seeking in the event that the Tribunal determines that a reprisal was taken against the complainant;
  
• (b) the reasons why the Commissioner is of the opinion that an application to the Tribunal in relation to the complaint is warranted;
  
• (c) a copy of the complaint and a summary of its contents;
  
• (d) the name, mailing address, telephone number, fax number and email address of each party to the proceedings and of their representative, if any;
  
• (e) the location at which the Commissioner believes the hearing should be conducted;
  
• (f) the language in which the Commissioner believes the proceedings should be conducted; and
  
• (g) identification of any special arrangements, including interpreters and equipment, that the Commissioner believes will be necessary to conduct the proceedings.

Notice

6. After the application has been filed by the Commissioner, the registrar must provide each party with notice of the filing.

FILING AND SERVICE

Service before filing

7. (1) A document that is required to be filed under these Rules may be filed only if a copy of that document has been served on each party and each interested person.

Service of application

(2) For the purpose of subrule (1), an application by the Commissioner under subsection 20.4(1) of the Act must be served on each person and entity that will be a party to the application under subsection 21.4(2) or 21.5(2) of the Act, as the case may be.

Service on representative

(3) If a party or interested person is represented, documents must be served on their representative.

Proof of service

(4) When a document referred to in subrule (1) is filed, it must be accompanied by proof of service that meets the requirements of Rule 11.

Language of filed documents

8. A document written in a language that is neither English nor French may be filed only if it is accompanied by a translation of that document into English or French and an affidavit attesting to the accuracy of the translation.

Methods of service

9. Service of a document is effected by

• (a) delivering a copy of the document by hand to the person or, if the person is a partnership, corporation or unincorporated organization, to a partner, officer or director; or
  
• (b) sending a copy of the document to the person by email or fax or by mail to the person’s last known address.

Effective day of service

10. (1) Service of a document is effective on the day on which it is delivered. However, service of a document by ordinary mail is effective on the day that is 10 days after the day on which it is mailed.

Service after 17:00 hours

(2) A document that is served by email or fax after 17:00 hours at the recipient’s local time is deemed to have been delivered on the next day that is not a Saturday or a holiday.

Proof of service

11. (1) Service of a document is proved by any of the following:

• (a) a written statement that is signed by the person who effected the service;
  
• (b) an affidavit of service; or
  
• (c) the admission of the person served.

Confirmation

(2) If service of a document is proved under paragraph (1)(a) or (b), the written statement or affidavit of service must be accompanied by

• (a) in the case where the document is served by email or fax, a receipt that confirms the successful transmission of the document; and
  
• (b) in the case where the document is served by registered mail or courier, a receipt that identifies the day on which the document was delivered.

ADDITION OF INTERESTED PERSONS

Motion

12. (1) A person that wishes to be added to the proceedings as an interested person may bring a motion for that purpose in accordance with Rules 13 to 17.

Considerations

(2) In deciding whether or not to add the person to the proceedings, the Tribunal must consider whether

• (a) they have a substantial interest in the proceedings;
  
• (b) their position is already represented in the proceedings;
  
• (c) their intervention would serve the public interest or the interests of justice; and
  
• (d) their participation would assist the Tribunal in its determination of the issues.

Directions

(3) If the Tribunal adds the person to the proceedings, the Tribunal must provide directions to them regarding their role in the proceedings.

MOTIONS

GENERAL

Submission of question

13. (1) A party may, by motion, submit any procedural or evidentiary question to the Tribunal.

Correction of defects

(2) If the content or service of a document that is filed is defective, the party that filed the document may make a motion to correct the defect.

Confidentiality order

(3) If a party makes a motion requesting an order that information or documents be kept confidential, the party must identify the information or documents for which the order is requested and the harm that would result from their disclosure.

Timeliness

(4) A party must make a motion as soon as feasible after it determines that there is a need to submit the question to the Tribunal.

ORAL MOTIONS

Leave required

14. (1) Leave of the Tribunal is required before a motion can be made orally.

Response to oral motion

(2) The Tribunal must provide each party that wishes to respond to an oral motion with directions regarding the form, time and manner of their response.

WRITTEN MOTIONS

Notice of motion

15. A written motion is commenced by filing a notice of motion that

• (a) sets out the relief requested by the party and the grounds for the motion; and
  
• (b) indicates which other parties, if any, have consented to the relief requested.

Response

16. Within 10 days after the day on which they are served with a notice of motion, a party may file a response that sets out their position regarding the relief sought by the moving party.

Directions

17. The Tribunal must provide directions to the parties regarding the time and manner of hearing their arguments and receiving their evidence.

DISCOVERY

STATEMENT OF PARTICULARS

General

Statement for each application

18. A party must file a statement of particulars for each of the following applications made by the Commissioner:

• (a) an application for a determination of whether or not a reprisal was taken against the complainant and for an order respecting a remedy under paragraph 20.4(1)(a) or (b) of the Act; and
  
• (b) if the Tribunal has determined that a reprisal was taken against the complainant, an application for an order respecting disciplinary action under paragraph 20.4(1)(b) of the Act.

Content

All parties

19. (1) A statement of particulars must contain the following information and documents:

• (a) the party’s position regarding the legal issues raised in the application and regarding the remedy or disciplinary action sought, as the case may be;
  
• (b) the material facts that the party intends to prove in the proceedings;
  
• (c) regarding documents that are relevant to a matter at issue in the proceedings and that are in the party’s power, possession or control,
  
  • (i) those documents that the party intends to produce in the proceedings,
    
  • (ii) a list and description of the documents for which the party claims privilege, and
    
  • (iii) a list and description of the documents that are not otherwise referred to in subparagraphs (i) and (ii);
    
  (d) for each document listed under subparagraph (c)(ii), the grounds for the privilege claimed;
  
• (e) regarding documents that are relevant to a matter at issue in the proceedings and that are no longer in the party’s power, possession or control,
  
  • (i) a list and description of the documents, and
    
  • (ii) for each document listed, a description of how the party lost power, possession or control of it and, to the best of the party’s knowledge, its current location;
    
  (f) the names of the witnesses, other than expert witnesses, that the party intends to call; and
  
• (g) if the party intends to call an expert witness, a summary of the issues that will be the subject of the witnessess’ testimony.

Commissioner

(2) A statement of particulars filed by the Commissioner must also set out the remedy or disciplinary action requested, as the case may be, and the basis for that request.

Complainant

(3) A statement of particulars filed by the complainant in relation to an application for remedy may include a request for a remedy that is different than that requested by the Commissioner, and if so, the statement must also include the basis for that request.

Employer or former employer

(4) A statement of particulars filed in relation to an application for remedy by the complainant’s employer or by the person or entity that was the complainant’s employer at the time the alleged reprisal was taken, as the case may be, must — for each material fact raised in the statements of particulars filed by the Commissioner and the complainant — contain a statement indicating whether they admit, deny or have no knowledge of that fact.

Time Limits

Remedy applications

20. In relation to an application for an order respecting a remedy, a party must file its statement of particulars within the following number of days after the date of the registrar’s notice under Rule 6:

• (a) in the case of the Commissioner, within 20 days after the date of the notice;
  
• (b) in the case of the complainant, within 35 days after the date of the notice;
  
• (c) in the case of the complainant’s employer or the person or entity that was the complainant’s employer at the time the alleged reprisal was taken, as the case may be, within 50 days after the date of the notice;
  
• (d) in the case of the person or persons identified in the application as being the person or persons who may have taken the alleged reprisal, within 50 days after the date of the notice; and
  
• (e) in the case of a party that is added to the proceedings under subsection 21.4(3) of the Act,
  
  • (i) if they are added before the date of the notice, within 50 days after the date of the notice, and
    
  • (ii) if they are added after the date of the notice, within the later of 50 days after the date of the notice and 20 days after the day on which they are added to the proceedings.

Disciplinary applications — registrar

21. (1) If the Commissioner makes an application for an order respecting disciplinary action under paragraph 20.4(1)(b) of the Act and the Tribunal determines that a reprisal was taken against the complainant, the registrar must

• (a) serve each party referred to in subsection 21.5(5) of the Act with a copy of the reasons issued by the Tribunal under subsection 21.5(3) of the Act; and
  
• (b) after that is completed, provide each party with notice that all parties have been served with the reasons.

Disciplinary applications — time limit

(2) In relation to an application for an order respecting disciplinary action, a party must file its statement of particulars within the following number of days after the date of the registrar’s notice under paragraph (1)(b):

• (a) in the case of the Commissioner, within 20 days after the date of the notice;
  
• (b) in the case of a person designated by the Tribunal under subsection 21.5(5) of the Act, within 35 days after the date of the notice; and
  
• (c) in the case of the person against whom the disciplinary action would be taken, within 50 days after the date of the notice.

COMMISSIONER’S REPLY

Content and time limits

22. The Commissioner may file a reply that sets out the arguments that he or she intends to make in rebuttal to facts or issues that were raised in another party’s statement of particulars. The reply must be filed

• (a) in the case of an application for a remedy, within 65 days after the date of the registrar’s notice under Rule 6; and
  
• (b) in the case of an application for disciplinary action, within 65 days after the date of the registrar’s notice under paragraph 21(1)(b).

COMPLAINANT’S REPLY

Content and time limit

23. In relation to an application for an order respecting a remedy, the complainant may file a reply that sets out the arguments that he or she intends to make in rebuttal to facts or issues that were raised in another party’s statement of particulars. The reply must be filed within 65 days after the date of the registrar’s notice under Rule 6.

SUPPLEMENTARY STATEMENT OF PARTICULARS

Content and time limit

24. Within 20 days after the day on which they are served with a statement of particulars, a party may file a supplementary statement of particulars that sets out any facts or issues that were not raised in their statement of particulars and that are necessary to address those raised in another party’s statement of particulars.

EXPERT REPORTS

Content

25. A party that intends to call an expert witness at the hearing must file a report prepared for them by the expert. The report must be signed and dated by the expert and include

• (a) a summary of the expert’s opinion;
  
• (b) a statement of the expert’s professional qualifications; and
  
• (c) the expert’s business address.

Time limits — remedy applications

26. In relation to an application for an order respecting a remedy, a party must file the expert’s report

• (a) in the case of the Commissioner, at least 60 days before the day on which the hearing begins;
  
• (b) in the case of the complainant, at least 40 days before the day on which the hearing begins; and
  
• (c) in the case of any other party, at least 20 days before the day on which the hearing begins.

Time limits — disciplinary action applications

27. In relation to an application for an order respecting disciplinary action, a party must file the expert’s report

• (a) in the case of the Commissioner, at least 60 days before the day on which the hearing begins;
  
• (b) in the case of the person designated by the Tribunal under subsection 21.5(5) of the Act, at least 40 days before the day on which the hearing begins; and
  
• (c) in the case of the person against whom the disciplinary action would be taken, at least 20 days before the day on which the hearing begins.

BOOK OF AUTHORITIES

Content

28. (1) A party or interested person that intends to refer to statutory or regulatory provisions, case law or other authorities in a hearing must reproduce those materials in a book of authorities and highlight the relevant passages.

Reproduction of federal law

(2) Federal statutory and regulatory provisions must be reproduced in both official languages.

Filing

(3) The book of authorities must be filed at least 15 days before the day on which the hearing begins.

PRE-HEARING CONFERENCES

Purpose

29. The Tribunal may schedule a pre-hearing conference to resolve any procedural or evidentiary matters related to the proceedings.

Modes

30. The Tribunal may conduct a pre-hearing conference in person, by teleconference, video conference or any other electronic means of communication.

Notice

31. If the Tribunal schedules a pre-hearing conference, the registrar must provide each party with notice of

• (a) the mode in which the conference will be conducted;
  
• (b) the conference’s date, time and place; and
  
• (c) any motions that the Tribunal intends to hear at the conference.

SUMMONING OF WITNESSES

Issuance

32. Following a written request made by a party or an interested person to the registrar, the Tribunal must issue a subpoena for the attendance of a witness or for the production of a document at the hearing.

Issuance in blank

33. The Tribunal may issue a subpoena in blank and the party or interested person to whom it is issued must complete it and may include any number of names.

Attendance

34. A witness is not required to attend a hearing, or to produce a document at the hearing, under a subpoena that is served on them less than 10 days before the day on which the hearing begins.

HEARING AND EVIDENCE

HEARING

Remote hearings

35. The Tribunal may order that a hearing be conducted in whole or in part by teleconference, video conference or any other electronic means of communication. If so, the Tribunal may provide directions to facilitate the conduct of the hearing using that means of communication.

Notice of hearing

36. The registrar must provide each party and interested person with notice of the date, time and place of the hearing at least 65 days before the day on which the hearing begins.

Special arrangements

37. A party or interested person that requires an interpreter or any other special arrangements at the hearing must provide the registrar with written notice of those requirements at least 10 days before the day on which the hearing begins.

Absence of party or interested person

38. If a party or interested person fails to appear at the hearing, the Tribunal may proceed with the hearing in their absence if it is satisfied that they received notice of the hearing.

Adjournment of hearing

39. The Tribunal may adjourn a hearing, and if so, it must provide directions to each party and interested person as to the date, time, place and terms of its continuance.

EVIDENCE

Limitation

40. (1) At the hearing, a party is not permitted to raise a position, seek to prove a material fact or to introduce a document that was not disclosed, or call a witness — other than an expert witness — who was not named, in its statement of particulars, reply or supplementary statement of particulars.

Limitation

(2) A party that does not provide an expert report in accordance with Rules 25 to 27 is not permitted to introduce that report into evidence or call that expert as a witness at the hearing.

Limitation

(3) At the hearing, the Commissioner or the complainant is not permitted to request any remedy or disciplinary action, as the case may be, that was not raised in its statement of particulars.

Examination outside hearing

41. (1) A party that wishes to examine a person who is unable to attend the hearing may bring a motion to the Tribunal for an order to examine that person outside the hearing and to introduce that person’s evidence at the hearing.

Directions required

(2) If the Tribunal grants the party’s motion, the Tribunal must provide directions regarding

• (a) the time, place and manner of the examination and cross-examination;
  
• (b) the notices to be given to the person being examined, the parties and the interested persons;
  
• (c) the attendance of parties; and
  
• (d) the production of any documents requested by the examining party.

Exclusion of witnesses

42. (1) The Tribunal may order that a witness be excluded from the hearing room until they are called to give evidence.

Exception

(2) However, the Tribunal cannot order the exclusion of any witness who is a party or any witness whose presence is essential to instruct the party’s representative, but the Tribunal may require the witness to give evidence before any other witnesses are called to give evidence on behalf of that party.

Communication with excluded witnesses prohibited

43. If the Tribunal orders that a witness be excluded from the hearing room, it is prohibited for any person to communicate with the witness regarding the evidence given during their absence from the hearing room until the witness has been called and has finished giving evidence.

TRANSITIONAL

Application

44. (1) Subject to subrules (2) to (4) and except for Rules 5, 6 and 20, these Rules apply to the proceedings in respect of an application that is made to the Tribunal by the Commissioner under subsection 20.4(1) of the Act before the day on which these Rules come into force.

Non-application

(2) The time limits referred to in paragraph 22(a) and Rule 23 do not apply to the proceedings in respect of the application.

Tribunal directions

(3) If the Tribunal provides a party or interested person with directions regarding any matter of procedure that is governed by these Rules before the day on which these Rules come into force, they must continue to act in accordance with those directions and the Rules that would otherwise govern the matter do not apply.

Non-application

(4) If a Rule contains a time limit that requires the doing of a thing within a prescribed number of days before the day on which the hearing begins, the time limit does not apply if

• (a) before the day on which these Rules come into force, the Tribunal provides the parties with directions regarding the time for the doing of the thing; or
  
• (b) on the day on which these Rules come into force, there are no more than the prescribed number of days remaining before the day on which the hearing begins.

COMING INTO FORCE

Registration

45. These Rules come into force on the day on which they are registered.

[21-1-o]

Footnote a
S.C. 2006, c. 9, s. 201

Footnote b
S.C. 2005, c. 46

Footnote c
S.C. 2006, c. 9, s. 201