PART 5Pleadings (continued)
42 Within 30 days after the day on which the Crown is served with the declaration of claim, the Crown must file a response that sets out the following information in consecutively numbered paragraphs:
(a) a statement indicating whether the Minister decided not to negotiate the specific claim, in whole or in part and, if so, the date of that decision;
(b) the Crown’s position with respect to the validity of the specific claim;
(c) if the Crown’s position is that the specific claim is valid, which of paragraphs 20(1)(e) to (h) of the Act may provide the basis for the Tribunal to award compensation;
(d) for each fact set out in the declaration of claim, a statement indicating whether the Crown admits, denies or has no knowledge of that fact;
(e) a brief statement of the facts that are related to the specific claim;
(f) the relief sought by the Crown; and
(g) an email address for the service of documents.
PART 6Addition of Parties and Intervenors
43 Notification made by the Tribunal under subsection 22(1) of the Act must be in writing and be served personally or by registered mail.
Marginal note:Late application
44 If a person makes an application for party status, or for leave to intervene, more than 60 days after the day on which they were served with the notice under subsection 22(1) of the Act, the Tribunal must, in deciding whether or not to grant the application, consider whether the person took all reasonable efforts to make the application in a timely manner.
Marginal note:Application for leave to intervene
45 In addition to the information required under Rule 34, the notice of application for an application for leave to intervene must set out
(a) the name, address and telephone number of the person and their representative, if any;
(b) a description of the manner in which they propose to participate in the proceedings and how their participation could assist the Tribunal in resolving the issues in relation to the specific claim;
(c) the name of the party, if any, whose position that person intends to support; and
(d) the language to be used by that person in the proceedings.
46 The Tribunal may provide an intervenor with directions regarding their role in the proceedings and the procedures to be followed, if doing so assists the just and timely resolution of the specific claim. However, before providing directions, the Tribunal must provide the parties with an opportunity to make submissions regarding possible directions.
PART 7Case Management
Case Management Conference
47 When a case management conference is scheduled, the registrar must provide the parties with notice of that conference.
48 (1) A party’s representative must attend each case management conference in person.
(2) However, a party’s representative may, with leave of the Tribunal, attend a case conference in another manner.
Marginal note:First case management conference
49 (1) The following matters must be discussed at the first case management conference:
(a) the condition precedent set out in subsection 16(1) of the Act that gave rise to the filing of the specific claim;
(b) the Crown’s position with respect to the validity of the specific claim;
(c) the degree to which the parties have prepared their cases respecting compensation;
(d) whether any of the parties are intending to enter oral history evidence;
(e) whether the interests of a province, First Nation or person might be significantly affected by a decision of the Tribunal described in subsection 22(1) of the Act;
(f) whether the parties are interested in pursuing a mediated settlement of all or part of the specific claim; and
(g) how best to conduct the proceedings so that they remain proportionate to the amount in dispute and the importance and complexity of the issues involved.
Marginal note:All case management conferences
(2) At every case management conference, the parties must be prepared to discuss any matter that may assist in the just, timely and cost-effective determination of an issue in relation to the specific claim, including:
(a) protocols for the entering of oral history evidence and expert evidence;
(b) the nature of the evidence that the parties intend to enter and whether any of that evidence will be oral history evidence, expert evidence or evidence that was not disclosed while the claim was filed with the Minister;
(c) procedural matters related to applications;
(d) cultural diversity matters that should be considered in applying these Rules;
(e) matters related to the disclosure of documents and any related issues of privilege or confidentiality;
(f) identification of issues in relation to the specific claim that have been resolved between the parties and those that remain to be decided by the Tribunal;
(g) identification and status of other claims that are based on similar facts or that involve the same lands or assets as the specific claim;
(h) matters related to the testimony of potential witnesses; and
(i) the procedural timeline.
Marginal note:Settlement discussions
50 Except with the written consent of all parties, all statements made and all documents disclosed at a case management conference in respect of the settlement of all or part of an issue in relation to the specific claim are made and disclosed without prejudice.
Marginal note:Electronic record
51 Each case management conference must be recorded electronically. However, the content of that record cannot be used in the proceedings unless leave is granted by the Tribunal or the content is incorporated in an order of the Tribunal.
52 Parties may, at any time during the proceedings and on terms that are mutually agreeable to them, enter into mediation of any of the issues in relation to the specific claim.
53 (1) The mediator must be either a member of the Tribunal or a private mediator that is jointly selected by the parties.
(2) Mediation by a Tribunal member is subject to the availability of the member and the resources of the Tribunal.
(3) If the mediator is a member of the Tribunal, that member cannot preside over the hearing unless the parties consent.
Marginal note:Without prejudice
54 Except with the written consent of the parties, all statements made and all documents disclosed during the mediation are made and disclosed without prejudice. However, documents disclosed during the mediation can be used at the hearing if they are otherwise available to the parties or the Tribunal in accordance with these Rules.
Marginal note:Pre-hearing conference
55 Before the day on which the hearing is scheduled to begin, a pre-hearing conference must be held between the parties’ representatives and the Tribunal member who will preside at the hearing.
Marginal note:Matters to be discussed
56 (1) At the pre-hearing conference, the parties must be prepared to discuss any matter that may facilitate the hearing, including
(a) whether any directions or pre-hearing orders may be required;
(b) the use of electronic technology at the hearing;
(c) procedural matters relating to oral history evidence and expert evidence;
(d) the daily and weekly schedules of the hearing;
(e) the parties’ compliance with orders of the Tribunal;
(f) logistical matters related to the holding of the hearing;
(g) the identity of witnesses who will be called at the hearing, and whether they have consented to testify or whether subponeas will be required; and
(h) whether any of the parties intend to introduce demonstrative evidence at the hearing and whether any parties have consented to its introduction.
Marginal note:Oral history evidence
(2) A party that intends to enter oral history evidence must be prepared to discuss the following matters at the pre-hearing conference:
(a) the First Nation’s practices with respect to safeguarding the integrity of its oral history;
(b) the First Nation’s protocols with respect to who is entitled to be custodian and speaker of its oral history; and
(c) the status of any pre-hearing disclosure ordered under Rule 84.
Application for Disclosure
57 A party may make an application for the disclosure of
(a) any documents or information, or category of documents or information, that are relevant to the proceedings and that are in the possession, power or control of another party; or
(b) the identity of any witness that is expected to give evidence on behalf of another party at the hearing.
Marginal note:Claim of confidentiality
58 (1) If a party claims confidentiality with respect to a document or information, or a category of documents or information, that is subject to an application for disclosure the party must, in addition to the information required under Rule 35, set out the following in its response:
(a) the nature of the confidentiality claimed; and
(b) the specific and direct harm that would result from the disclosure.
Marginal note:Inspection by Tribunal
(2) If a party claims confidentiality with respect to a document or information, or a category of documents or information, that is subject to an application for disclosure, the Tribunal may inspect them in order to determine
(a) whether they are relevant to the proceedings; or
(b) whether the claim of confidentiality is valid.
Marginal note:Draft disclosure order
(3) If a party claims confidentiality with respect to documents or information, or a category of documents or information, but consents to their disclosure under certain conditions, the party must, together with its response, file a draft order that
(a) identifies the documents or information, or category of documents or information, for which there is consent to disclosure; and
(b) sets out the conditions for their disclosure, including
(i) the parties that are to have access to them, and
(ii) for each document for which there is consent to disclosure,
(A) the number of copies that are to be provided to the parties,
(B) the limitations imposed with respect to their reproduction, and
(C) instructions for their return or destruction at the conclusion of the proceedings.
Marginal note:Claim of privilege
59 (1) If a party claims privilege with respect to a document or information, or a category of documents or information, that is subject to an application for disclosure the party must, in addition to the information required under Rule 35, set out the nature of the privilege claimed in its response.
Marginal note:Inspection by Tribunal
(2) If a party claims privilege with respect to a document or information, or a category of documents or information, that is subject to an application for disclosure, the Tribunal may inspect them in order to determine whether the claim of privilege is valid.
PART 9Examinations Before the Hearing
60 (1) A party may make an application to examine a person before the hearing
(a) for the purpose of discovery;
(b) for the purpose of cross-examining the person on their affidavit; or
(c) for the purpose of taking the person’s evidence for use at the hearing.
Marginal note:On consent
(2) Leave is not required to make the application if all parties consent to the examination.
Marginal note:Additional information
(3) In addition to the information required under Rule 34, the notice of application must set out the following information:
(a) whether the examination is proposed to be conducted orally, in writing or both;
(b) whether the person or party proposed to be examined has consented to the examination; and
(c) whether any other parties have consented to the examination.
61 When deciding an application made under paragraph 60(1)(c), the Tribunal must consider the following factors in relation to the person proposed to be examined:
(a) whether they will be absent during the time of the hearing;
(b) their age or infirmity;
(c) the distance they reside from the place of the hearing; and
(d) the expense of having them attend the hearing.
62 If the Tribunal permits the examination to be conducted, it may provide the parties with directions regarding
(a) the format and location of the examination; and
(b) in the case of an oral examination, the means by which it is to be recorded.
Marginal note:Designated person
63 (1) When the Crown or a First Nation is examined for discovery, it must designate a person to be examined on its behalf.
(2) On the application of the examining party, the Tribunal may order that a person other than the one designated be examined.
Marginal note:Duty of witness
64 The witness must, to the best of their knowledge, information and belief, answer every question posed to them that is relevant to the specific claim.
65 Examinations must be conducted under oath.
66 Oral examinations must be recorded by a person who is qualified to record examinations.
67 (1) If the witness understands neither French nor English, or is hearing or speech impaired, the examining party must arrange for the attendance of an independent and competent person to accurately interpret everything said during the examination.
Marginal note:Interpreter’s oath
(2) Before providing services at the examination, the interpreter must take an oath that they will accurately interpret everything said during the examination.
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