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Filing Manual - Guide O - Review, Rehearing or Variance Applications

An applicant may apply under section 21 of the NEB Act for a review or rehearing of a previous Board decision or order or to vary a certificate, licence or permit. Part III of the Rules sets out the procedure to be followed for a review or rehearing.

Goal

The application must identify the decision, order, certificate, licence or permit affected and must include the grounds for review or rehearing of the decision or order or the reason variation of the certificate, licence or permit is required.

Filing Requirements

1. Applications for review or rehearing must meet the requirements set out in Part III of the Rules, which may be summarized as follows:

  • The application must be in writing, signed by the applicant or the applicant's authorized representative, filed with the Board and served on all parties to the proceeding that gave rise to the decision or order in respect of which the review or rehearing is sought.
  • The application must contain:
    • a concise statement of the facts;
    • in the case of a review, the grounds that the applicant considers sufficient to raise a doubt as to the correctness of the decision or order;
    • in the case of a rehearing, the grounds that the applicant considers sufficient to establish the requirement for a rehearing, including:
      • any error of law or of jurisdiction;
      • changed circumstances or new facts that have arisen since the close of the original proceeding; or
      • facts that were not placed in evidence in the original proceeding and that were then not discoverable by reasonable diligence;
    • the nature of the prejudice or damage that has resulted or will result from the decision or order; and
    • the nature of the relief sought.

2. Where the application is to vary an order, certificate, licence or permit, include the reason the variation is required and all information necessary to support the change proposed, including the information required by the relevant Filing Manual Guide.

Guidance

Reference to an application for review includes an application to vary or rescind any decision or order of the Board.

Section 45 of the Rules establishes a two-step process for review or rehearing applications. The Board first determines whether the decision or order should be reviewed or the application reheard. In order to find that a review or rehearing is required, the Board must be satisfied that the applicant has raised a doubt as to the correctness of the decision or order under review or has demonstrated that a rehearing is required. Before making its determination, the Board may, but is not required to, give interested parties the opportunity to file submissions. If the first test is met, the Board considers the review or rehearing application on its merits. In doing so, the Board may establish a process to govern the conduct of the review or rehearing.

There is no automatic right of review or rehearing. In other words, the Board's power under section 21(1) of the NEB Act is discretionary. In past decisions, the Board has stated this discretion must be exercised sparingly and with caution.

An applicant may apply for an order staying the decision or order in respect of which the review is sought pending the review or staying the original proceeding pending the rehearing by meeting the requirements of section 47 of the Rules.

Applications to vary an order, certificate, licence or permit are generally required to reflect changes to previously-approved applications. Such an application may be required to:

  • modify facilities previously approved under section 52 or 58 of the NEB Act;
  • make changes to tolls and tariffs approved under Part IV of the NEB Act; or
  • make changes to the name of the holder of the certificate, licence or permit.

In each case, the applicant must satisfy the filing requirements of the relevant Filing Manual Guide. For example, an application seeking to vary a certificate of public convenience and necessity issued pursuant to section 52 to reflect a design change must include all information required under Guide A to support the proposed change. The applicant must examine the Guide pursuant to which the original Board instrument was issued to determine specific filing requirements.

Variation of a Board decision, order or permit does not require the approval of the Governor in Council. However, Governor in Council approval of a variation of a certificate or licence is required under section 21(2) of the NEB Act. Applicants should be aware that this requirement may extend the timeline for obtaining certificate and licence variations.

Next Steps...

File the completed application. Applicants are encouraged to include the completed relevant checklists from Appendix I.

 

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Date Modified:
2011-10-28