Her Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to section 33, paragraph 36(1)(b) and subsection 36(3) of the First Nations Fiscal and Statistical Management Act a, hereby makes the annexed First Nations Tax Commission Review Procedures Regulations. S.C. 2005, c.9
Interpretation
The following definitions apply in these Regulations.
Act means the First Nations Fiscal Management Act. (Loi)
applicant means a person who requests a review under subsection 33(1) of the Act. (demandeur)
business day means a day other than a Saturday or holiday. (jour ouvrable)
intervenor means a person or organization added as an intervenor under section 14. (intervenant)
party means an applicant or a First Nation that is the subject of a review. (partie)
review means
Delegation to Panel
On receipt of a request for review made under subsection 33(1) of the Act, or on initiating a review under subsection 33(2) of the Act, the Commission may delegate its power of review to a panel consisting of one or more commissioners.
The commissioners of that panel shall be designated by the Chief Commissioner.
In these Regulations, a reference to the Commission includes a reference to a panel constituted under subsection (1).
The Commission may make a decision in any review without holding a hearing.
Delivery and Filing of Documents
Delivery of a document may be made personally or by sending it by registered mail, fax or e-mail.
Personal delivery of a document is made
in the case of an individual, by leaving the document with that individual or with a person at least 18 years of age residing at that individual’s place of residence;
in the case of a First Nation, by leaving the document with the individual apparently in charge, at the time of delivery, of the main administrative office of the First Nation, or with the First Nation’s legal counsel; and
in the case of a corporation, by leaving the document with the individual apparently in charge, at the time of delivery, of its head office or one of its branch offices, or with an officer or director of the corporation or the corporation’s legal counsel.
Subject to subsection (4), a document shall be considered to have been delivered
if delivered personally, on the day on which personal delivery is made;
if sent by registered mail, on the fifth day after it is mailed;
if sent by fax, on the day indicated on the confirmation of transmission; and
if sent by e-mail, on the day indicated in the electronic confirmation that the e-mail has been opened.
A document related to a review is filed with the Commission when it is delivered to its head office at the address indicated on the Commission’s website.
Subject to subsection (3), each document filed with the Commission shall be stamped with the date on which it was delivered.
A document filed with the Commission on a day that is not a business day or after 17:00 local time on a business day shall be stamped as having been delivered on the next business day.
When a document is filed with the Commission, the Commission shall deliver a copy of it to all parties and intervenors.
Documents filed on behalf of a party shall be signed by a person authorized by the party and shall set out the nature of the person’s authorization.
The Commission may at any time require a person who has signed a document on behalf of a party to provide proof of the person’s authority to act in that capacity.
Reviews Under Subsection 33(1) of the Act
Procedure
A request for review shall set out
the name, address and telephone number, and any available fax number and e-mail address, of the applicant and of any representative acting on behalf of the applicant;
an address for the delivery of documents, if different from the address of the applicant or representative;
the name of the First Nation, and the title of any local revenue law, in respect of which the request for review is made;
the grounds for the request for review;
a concise statement of the facts and any law on which the applicant intends to rely;
the remedy sought;
any other information that the applicant believes the Commission requires in order to conduct the review; and
if the review is requested on an expedited basis, the reasons for the urgency.
A request for review shall be accompanied by two copies of the applicant’s request for a remedy made to the council of the First Nation pursuant to paragraph 33(1)(b) of the Act and any related correspondence with the council of the First Nation.
If a request for review does not contain the information required under section 8, the Commission shall
identify what information is missing; and
advise the applicant that the information must be provided before the Commission will proceed with the request for review.
A First Nation that is the subject of the review may file a reply to the request for review within 10 business days after the day on which the Commission delivers to it a copy of the request for review.
A reply to a request for review shall identify the request for review to which the reply relates and set out
the name, address and telephone number, and any available fax number and e-mail address, of the First Nation and of any representative acting on behalf of the First Nation;
an address for the delivery of documents, if different from the address of the First Nation or its representative;
an outline of the position the First Nation takes in response to the request for review;
an admission or denial of each allegation of fact contained in the request for review;
a concise statement of any additional facts and any law on which the First Nation intends to rely;
any other information that the First Nation believes the Commission requires in order to conduct the review; and
if the review is requested on an expedited basis, the reasons for the urgency.
If a First Nation fails to submit a reply to a request for review, the Commission may conduct the review solely on the basis of the submissions of the applicant and any intervenors.
The applicant may file a response to the First Nation’s reply within five business days after the day on which the Commission delivered a copy of the reply to the applicant.
A response to the First Nation’s reply shall identify the request for review to which the response relates and admit or deny any additional statements of fact contained in the reply.
Within 10 business days after the filing of a request for review that meets the requirements of section 8, the Commission shall
publish a notice of the review on an Internet site maintained by the Commission; and
deliver a copy of the request for review to the First Nation that is the subject of the review and to the First Nations Financial Management Board.
Any person or organization may apply to the Commission to be added as an intervenor
if a hearing is to be held, at any time before the hearing begins; and
in any other case, at any time before a decision on the review is rendered.
On receipt of an application under subsection (1), the Commission may
add the person or organization as an intervenor;
direct the person or organization to provide the Commission with additional information in support of the application; or
reject the application.
If the First Nations Financial Management Board makes an application in accordance with subsection (1), the Commission shall add the Board as an intervenor for the purpose of making representations as to the impact of any requested remedy.
An intervenor may make written submissions and, if a hearing is being held, oral argument to the Commission.
The Commission may require confirmation, by way of a statutory declaration, of any facts alleged in a request for review or reply that have not been admitted.
A party who has submitted a statutory declaration shall make the deponent of the declaration available for cross-examination on the content of the declaration by any other party.
An applicant may file with the Commission a request that a review already under way address additional issues that would otherwise be the subject of a separate review.
In conducting a review, the Commission may
accept evidence that is not given on oath or evidence that would not ordinarily be admissible in a court of law;
at the request of a party, require another party to provide the Commission with any documents necessary to the conduct of its review; and
direct that written submissions be filed.
The Commission may hold a single hearing in respect of more than one review or consolidate two or more reviews.
The Commission may require the parties to attend any conferences or meetings necessary to the conduct of a review.
Settlement
A settlement conference may be scheduled by the Commission or at the request of a party at any stage in a review.
If a representative is acting for a party, the Commission may direct that the party be present at the settlement conference or available to instruct the representative at that time.
The Commission may make settlement recommendations to the parties and may suspend the review to enable the parties to attempt to resolve the subject of the request for review informally.
The Commission may recommend to the parties that the request for review be referred to formal mediation, in which case the Commission shall provide to the parties a roster of mediators who are independent of the Commission.
If the parties reach an agreement, the Commission may make an order under paragraph 33(3)(a) of the Act embodying that agreement.
If six months have elapsed since a review was referred to mediation or adjourned for other settlement discussions without a settlement being reached, the Commission shall recommence the review and notify the parties accordingly.
Hearings
The Commission may at any time direct that a hearing be held in respect of a request for review.
If the Commission directs that a hearing be held, the Commission shall fix the time, date and place for the hearing and deliver a notice of the hearing to all parties and intervenors.
The Commission may direct that a brief written summary of the submissions of any party or intervenor be filed in advance of a hearing.
With the agreement of the parties, the Commission may
proceed on the basis of an agreed statement of facts; or
limit the number of witnesses to be called at a hearing.
The Commission may hear oral evidence or oral submissions by teleconference.
The Commission may adjourn a hearing for any time and on any terms that it considers appropriate.
If a party or intervenor who has been given notice of a hearing in accordance with subsection 25(2) fails to attend, the Commission may proceed with the hearing and complete its review in the absence of that party or intervenor.
A party may, at any time before the conclusion of a hearing, request the Commission to apply to a justice of the peace for a subpoena compelling a person to appear before the Commission to give evidence and to bring any documents specified in the subpoena.
The Commission shall pay travel expenses, in the amount set out in Tariff A of the Federal Courts Rules, to every person compelled by subpoena to appear before it.
If a hearing is to be held, a pre-hearing conference between the parties shall be scheduled by the Commission to
direct the pre-hearing production of documents by a party;
determine whether a subpoena will be required in respect of any person who may be required as a witness;
direct a party to provide further information regarding its position;
develop an agreed statement of facts or obtain admissions that might facilitate the hearing;
attempt to simplify the matters in dispute between the parties, including the resolution of some or all of them;
determine the conduct of the hearing, including the order in which the parties will proceed, the number and identity of witnesses and the estimated time required; or
decide any other matter that may aid in securing a just, expeditious or inexpensive disposition of the review.
If a representative is acting for an applicant, the Commission may direct that the applicant be present at the pre-hearing conference.
A pre-hearing conference may be conducted by a single Commissioner or an employee of the Commission.
At the request of a party, the Commission may consent to the examination of a person outside a hearing, having regard to
the expected absence of the person at the time of the hearing;
the age or any illness or infirmity of the person;
the distance the person resides from the place where the hearing will be held; and
the expense of having the person attend the hearing.
In giving its consent under subsection (1), the Commission shall give directions regarding the time, place and manner of the examination, the notice to be given to the person being examined and to the other parties, the attendance of any other witnesses and the production of any requested documents or other material.
Other parties may cross-examine any person examined outside a hearing.
A party submitting transcribed evidence shall provide a copy of the transcript, at its own expense, to the Commission and to all other parties.
If the other party is a corporation, it shall provide as a witness an officer or director of the corporation who has knowledge of the facts in issue.
If the other party is a First Nation, it shall provide as a witness the person who administers the taxes of the First Nation or another person who has knowledge of the facts in issue.
Compliance and Costs
If an applicant fails to comply with these Regulations, the Commission may dismiss the request for review.
The Commission may, on the application of a party, extend or shorten any period provided for in these Regulations.
If it is necessary to secure the just, expeditious or inexpensive hearing of a request for review, or to accommodate the customs or culture of the First Nation in respect of which a hearing is held, the Commission may vary any procedure provided for by these Regulations.
No costs shall be awarded in any review.
Decisions
All decisions and orders of the Commission in a review shall be issued in written form and shall be accompanied by written reasons.
A decision or order of the Commission, and the accompanying reasons, shall be published in the First Nations Gazette or on an Internet site maintained by the Commission.
The Commission shall provide a copy of each decision, order and accompanying reasons to all parties and intervenors and make copies of them available for inspection by the public at its offices.
An order made under paragraph 33(3)(a) of the Act shall set out the period within which the First Nation shall implement the required remedy.
Reviews Under Subsection 33(2) of the Act
If the Commission decides to conduct a review under subsection 33(2) of the Act, it shall deliver a notice of review to the First Nation that is the subject of the review.
The notice of review shall
if the Commission is of the opinion that the First Nation has not complied with the Act or a regulation, identify the provision of the Act or regulation in question and the reason that the Commission believes it has not been complied with; and
if the Commission is of the opinion that the First Nation has unfairly or improperly applied a law, identify the law in question and the reason that the Commission believes it has been unfairly or improperly applied.
The notice of review may require a First Nation to produce any documents set out in the notice relating to the subject of the review.
Within 10 business days after the delivery of a notice of review, the Commission shall publish a notice of the proposed review on an Internet site maintained by the Commission and deliver a copy of the notice to the First Nations Financial Management Board.
A First Nation that receives a notice of review may file a reply within 10 business days after delivery of the notice.
A reply to a notice of review shall identify the notice to which the reply relates and set out
the name, address and telephone number, and any available fax number and e-mail address, of the First Nation and of any representative acting on behalf of the First Nation;
an address for delivery of documents, if different from the address of the First Nation or its representative;
an outline of the position that the First Nation takes in response to the allegations set out in the notice;
an admission or denial of each allegation of fact contained in the notice;
a concise statement of any additional facts and any law on which the First Nation intends to rely; and
any other information that the First Nation believes the Commission requires in order to conduct the review.
If a First Nation fails to file a reply, the Commission may proceed with the review.
The Commission may require confirmation, by way of a statutory declaration, of any facts alleged in a reply that have not been admitted.
A party who has submitted a statutory declaration shall make the deponent of the declaration available for cross-examination by the Commission on the content of the declaration.
In conducting a review, the Commission may
accept evidence that is not given on oath or evidence that would not ordinarily be admissible in a court of law;
at the request of a party, require another party to provide the Commission with any documents necessary to the conduct of its review; and
direct that written submissions be filed.
Any person or organization may apply to the Commission to be added as an intervenor
if a hearing is to be held, at any time before the hearing begins; and
in any other case, at any time before the decision on the review is rendered.
On receipt of an application under subsection (1), the Commission may
add the person or organization as an intervenor;
direct the person or organization to provide the Commission with additional information in support of the application; or
reject the application.
If the First Nations Financial Management Board makes an application in accordance with subsection (1), the Commission shall add the Board as an intervenor for the purpose of making representations as to the impact of any potential remedy.
The Commission may at any time direct that a review be set down for a hearing and, at the request of the First Nation, shall hold a hearing.
Coming into Force
These Regulations come into force on the day on which they are registered.