Procedures for the conduct of final offer arbitration pursuant to part IV of the Canada Transportation Act
The following provides a procedural guide to arbitrators and to the parties to an arbitration. These provisions can be considered and adopted by an arbitrator when the parties to the arbitration do not otherwise agree on how the arbitration is to be conducted.
Conduct of the Arbitration
1. The arbitrator, including an arbitration panel in these guidelines, may conduct the arbitration in the manner the arbitrator considers appropriate having regard at all times to considerations of fairness, expediency and an effective determination of the matters in dispute.
2. The mandate of the arbitrator under section 1 includes the right to determine the admissibility, relevance, substance and weight of any evidence submitted at the hearing by the parties in support of the information which the parties have exchanged, and the means by which the evidence is adduced.
Communication Between the Parties
3. Following the selection and appointment of an arbitrator, no communication shall take place thereafter between a party and an arbitrator without the other party being present, in the case of an oral communication, or the disclosure being made to the other party in the case of a written communication.
- All written communication including notices may be served on a party by courier, facsimile transmission or other form of electronic communication at the address or numbers shown on the shipper's final offer and the carrier's final offer or to their designated representative.
- A notice or other written communication sent by courier shall be considered to have been received on the date it is received.
- Delivery and receipt of an electronic communication shall be considered to have taken place on the date and time identified in the electronic delivery acknowledgement.
5. Unless the parties otherwise agree, sections 6 to 24 do not apply to a 30-day summary arbitration process.
6. As soon as possible from the time of the appointment of the arbitrator and where possible on the agreement of the parties, the arbitrator shall convene a pre-hearing conference.
7. For the purpose of facilitating the arbitration process, the parties shall be prepared at the pre-hearing conference to:
- confirm the dates for the completion of all procedural matters, including the dates for the exchange of information, interrogatories and answers to interrogatories;
- identify whether an oral hearing is needed;
- identify the length of time required for a hearing;
- identify the time, date and place of the hearing;
- identify the time frame for the disclosure of witnesses' statements;
- identify whether site inspections shall be part of the proceedings;
- identify the type of information which will be admissible at the hearing; and
- identify any other matters relevant to the arbitration.
8. Additional pre-hearing conferences may take place in order to:
- fix the time, place and duration of a hearing;
- identify any additional information which the arbitrator may request;
- identify and determine any other matters which will ensure the orderly and efficient determination of the issues in dispute; and
- identify any other matters relevant to the arbitration.
9. A pre-hearing conference may take place by conference call.
10. The arbitrator shall prepare minutes of the pre-hearing conference and include any rulings or agreements made and shall, as soon as possible, send a copy of the minutes to the parties.
11. The arbitrator shall prepare an agenda for the arbitration proceedings and shall circulate it to the parties.
12. The arbitrator may determine the number of witnesses, including expert witnesses, and the manner in which witnesses, including expert witnesses, will testify on each issue.
13. Subject to section 12, each party shall have the right to present witnesses and to cross-examine witnesses who are adverse in interest.
14. Witnesses shall testify under oath or affirmation unless otherwise agreed to by the parties.
15. The arbitrator may at any time direct that witnesses be excluded from part of an oral hearing.
16 (1). In order to facilitate the oral hearing, if any, the arbitrator may direct parties to file witness statements which shall:
- contain the full name and address of the witness, the witness' relationship to or connection with any of the parties, and a description of the witness' background qualifications, training and experience that are relevant to his/her testimony;
- indicate whether the witness is testifying from his or her own knowledge, observation or experience, or alternatively from information and belief; and
- reference the information exchanged on which the witness will testify.
(2)Subsection (1) does not apply to a witness for which an expert written opinion was filed as part of the exchange of information.
17. Any expert written opinion filed by a party as part of the exchange of information shall:
- include a description of the qualifications of the expert;
- enunciate the expert's opinion;
- state the facts upon which the expert's opinion is based; and
- be dated and signed by its author.
18. Subject to the direction of the arbitrator or to any agreement of the parties, a party wishing to object to all or a part of an expert's opinion shall, no less than 10 days before the hearing, notify the arbitrator and the party relying on the opinion of its intention to do so and include the grounds for the objection.
- The parties may make use of an answer or answers to interrogatories during cross-examination of witnesses and may rely upon any answer or answers provided by the other party as part of its case.
- When use is made of an answer or answers to interrogatories during cross-examination or as part of a party's case, the question or questions may be presented to the witness and/or be deposited before the arbitrator.
20. The arbitrator may conduct the arbitration by:
- reviewing the material filed by the parties; or
- reviewing the material filed by the parties and convening an oral hearing.
21. The arbitrator shall commence an oral hearing by:
- recording the name of the arbitrator, the parties, and any representatives, including counsel;
- recording the time, date and place of the hearing;
- acknowledging the receipt of the final offers of the parties; and
- acknowledging the receipt of the information of the parties and the identification of the information.
22. The party submitting the matter for final offer arbitration shall present evidence first, followed by the carrier.
23. Rebuttal evidence shall not be permitted unless, at the discretion of the arbitrator, consideration of fairness warrants it.
24. Final arguments shall be heard prior to the closing of the hearing and may be submitted in written form at the discretion of the arbitrator.
25. The arbitrator may vary the hearing procedures as the circumstances may require.
26. The final decision of the arbitrator shall identify the parties, the place, date, time and length of the arbitration, the final offer selected, and shall be signed by the arbitrator.
Disposal of Documents
- Following the expiration of the deadlines for requests for written reasons provided for in the Act, the arbitrator shall destroy all information, notes or documents, including agendas or minutes of pre-hearing conferences filed, deposited, prepared or taken during the arbitration.
- Where all the parties request the arbitrator to provide written reasons for the decision, the arbitrator shall, within a reasonable time following the issuance of the written reasons, destroy all information, notes or documents, including agendas or minutes of pre-hearing conferences filed, deposited, prepared or taken during the arbitration.
- While in possession or control of any confidential documents, notes or information, the arbitrator shall take all reasonable measures necessary to preserve the confidentiality of the said documents, notes or information.