Part V: Written Proceedings (Rules 55-64)

Form and Content of Pleadings

55.  (1)  Every pleading filed in a panel review shall contain the following information:

(a)  the title of, and any Secretariat file number assigned for, the panel review;
(b)  a brief descriptive title of the pleading;
(c)  the name of the Party, investigating authority or interested person filing the document;
(d)  the name of counsel of record for the Party, investigating authority or interested person;
(e)  the service address, as defined in rule 3; and
(f)  the telephone number of the counsel of record referred to in subrule (d) or, where an interested person is not represented by counsel, the telephone number of the interested person.

(2)  Every pleading filed in a panel review shall be on paper 8 1/2 x 11 inches (216 millimetres by 279 millimetres) in size. The text of the pleading shall be printed, typewritten or reproduced legibly on one side only with a margin of approximately 1 1/2 inches (40 millimetres) on the left-hand side with double spacing between each line of text, except for quotations of more than 50 words, which shall be indented and single-spaced. Footnotes, titles, schedules, tables, graphs and columns of figures shall be presented in a readable form. Briefs and appendices shall be securely bound along the left-hand margin.

(3) Every pleading filed on behalf of a participant in a panel review shall be signed by counsel for the participant or, where the participant is not represented by counsel, by the participant.

56.  (1)  Where a participant files a pleading that contains proprietary information, the participant shall file two sets of the pleading in the following manner:

(a)  one set containing the proprietary information shall be filed under seal and

(i)  with respect to a panel review of a final determination made in Canada, shall be labelled “Proprietary”, “Confidential”, “Confidentiel” or “De nature exclusive”, with the top of each page that contains proprietary information marked with the word “Proprietary”, “Confidential”, “Confidentiel” or “De nature exclusive” and with the proprietary information enclosed in brackets,
(ii)  with respect to a panel review of a final determination made in Mexico, shall be labelled “Confidencial”, with the top of each page that contains proprietary information marked with the word “Confidencial” and with the proprietary information enclosed in brackets, and
(iii)  with respect to a panel review of a final determination made in the United States, shall be labelled “Proprietary”, with the top of each page that contains proprietary information marked with the word “Proprietary” and with the proprietary information enclosed in brackets; and

(b)  no later than one day following the day on which the set of pleadings referred to in subrule (a) is filed, another set not containing proprietary information shall be filed and

(i)  with respect to a panel review of a final determination made in Canada, shall be labelled “Non-Proprietary”, “Non-Confidential”, “Non confidentiel” or “De nature non exclusive”,
(ii)  with respect to a panel review of a final determination made in Mexico, shall be labelled “No-confidencial”, and
(iii)  with respect to a panel review of a final determination made in the United States, shall be labelled “Non-Proprietary”, with each page from which proprietary information has been deleted marked to indicate the location from which the proprietary information was deleted.

(2)  Where a participant files a pleading that contains privileged information, the participant shall file two sets of the pleading in the following manner:

(a)  one set containing the privileged information shall be filed under seal and

(i)  with respect to a panel review of a final determination made in Canada, shall be labelled “Privileged” or “Protege”, with the top of each page that contains privileged information marked with the word “Privileged” or “Protege” and with the privileged information enclosed in brackets,
(ii)  with respect to a panel review of a final determination made in Mexico, shall be labelled “Privilegiada”, with the top of each page that contains privileged information marked with the word “Privilegiada”, and with the privileged information enclosed in brackets, and 
(iii)  with respect to a panel review of a final determination made in the United States, shall be labelled “Privileged”, with the top of each page that contains privileged information marked with the word “Privileged” and with the privileged information enclosed in brackets; and

(b)  no later than one day following the day on which the set of pleadings referred to in subrule (a) is filed, another set not containing privileged information shall be filed and

(i)  with respect to a panel review of a final determination made in Canada, shall be labelled “Non-Privileged” or “Non protege”,
(ii)  with respect to a panel review of a final determination made in Mexico, shall be labelled “No-privilegiada”, and
(iii)  with respect to a panel review of a final determination made in the United States, shall be labelled “Non-Privileged”, with each page from which privileged information has been deleted marked to indicate the location from which the privileged information was deleted.

Filing of Briefs

57.  (1)  Subject to subrule 38(1), every participant who has filed a Complaint under rule 39 or a Notice of Appearance with a statement under subrule 40(1)(d)(i) or (iii) shall file a brief, setting forth grounds and arguments supporting allegations of the Complaint no later than 60 days after the expiration of the time period fixed, under subrule 41(1), for filing the administrative record.

(2)  Every participant who has filed a Notice of Appearance with a statement under subrule 40 (1)(d)(ii) or (iii) shall file a brief setting forth grounds and arguments opposing allegations of a Complaint no later than 60 days after the expiration of the time period for filing of briefs referred to in subrule (1).

(3)  Every participant who has filed a brief pursuant to subrule (1) may file a brief replying to the grounds and arguments set forth in the briefs filed pursuant to subrule (2) no later than 15 days after the expiration of the time period for filing of briefs referred to in subrule (2). Reply briefs shall be limited to rebuttal of matters raised in the briefs filed pursuant to subrule (2).

(4)  An appendix containing authorities cited in all briefs filed under any of subrules (1) to (3) shall be filed with the responsible Secretariat within 10 days after the last day on which a brief under subrule (3) may be filed.

(5)  Any number of participants may join in a single brief and any participant may adopt by reference any part of the brief of another participant.

(6)  A participant may file a brief without appearing to present oral argument.

(7)  Where a panel review of a final determination made by an investigating authority of the United States with respect to certain goods involves issues that may relate to the final determination of the other investigating authority with respect to those goods, the latter investigating authority may file an amicus curiae brief in the panel review in accordance with subrule (2).

Failure to File Briefs

58.  (1)  In respect of a panel review of a final determination made in the United States or Canada, where a participant fails to file a brief within the time period fixed and no motion pursuant to rule 20 is pending, on a motion of another participant, the panel may order that the participant who fails to file a brief is not entitled

(a)  to present oral argument;
(b)  to service of any further pleadings, orders or decisions in the panel review; or
(c)  to further notice of the proceedings in the panel review.

(2)  Where

(a)  no brief is filed by any complainant or by any participant in support of any of the complainants within the time periods established pursuant to these rules, and
(b)  no motion pursuant to rule 20 is pending,

the panel may, on its own motion or pursuant to the motion of a participant, issue an order to show cause why the panel review should not be dismissed.

(3)  If, pursuant to an order under subrule (2), good cause is not shown, the panel shall issue an order dismissing the panel review.

(4)  Where no brief is filed by an investigating authority, or by an interested person in support of the investigating authority, within the time period fixed in subrule 57(2), a panel may issue a decision referred to in rule 72.

Content of Briefs and Appendices

59.  (1)  Every brief filed pursuant to subrule 57(1) or (2) shall contain information, in the following order, divided into five parts:

Part I:

(a)  A table of contents; and
(b)  A table of authorities cited:

The table of authorities shall contain references to all treaties, statutes and regulations cited, any cases primarily relied on in the briefs, set out alphabetically, and all other documents referred to except documents from the administrative record. The table of authorities shall refer to the page(s) of the brief where each authority is cited and mark, with an asterisk in the margin, those authorities primarily relied on. 

Part II: A statement of the case:

(a)  in the brief of a complainant or of a participant filing a brief pursuant to subrule 57(1), this Part shall contain a concise statement of the relevant facts;
(b)  in the brief of an investigating authority or of a participant filing a brief pursuant to subrule 57(2), this Part shall contain a concise statement of the position of the investigating authority or the participant with respect to the statement of facts set out in the briefs referred to in paragraph (a), including a concise statement of other facts relevant to its case; and
(c)  in all briefs, references to evidence in the administrative record shall be made by page and, where practicable, by line.

Part III: A statement of the issues:

(a)  in the brief of a complainant or of a participant filing a brief pursuant to subrule 57(1), this Part shall contain a concise statement of the issues; and
(b)  in the brief of an investigating authority or of a participant filing a brief pursuant to subrule 57(2), this Part shall contain a concise statement of the position of the investigating authority or the participant with respect to each issue relevant to its case.

Part IV: Argument:

This Part shall consist of the argument setting out concisely the points of law relating to the issues, with applicable citations to authorities and the administrative record.

Part V: Relief:

This part shall consist of a concise statement precisely identifying the relief requested.

(2)  Paragraphs in Parts I to V of a brief may be numbered consecutively.

(3)  A reply brief filed pursuant to rule 57(3) shall include a table of contents and a table of authorities, indicating those principally relied upon in the argument.

Appendix to the Briefs

60.  (1)  Authorities referred to in the briefs shall be included in an appendix, which shall be organized as follows: a table of contents, copies of all treaty and statutory references, references to regulations, cases primarily relied on in the briefs, set out alphabetically, and all other documents referred to in the briefs except documents from the administrative record.

(2)  The appendix required under subrule 57(4) shall be compiled by a participant who filed a brief under subrule 57(1) and who was so designated by all the participants who filed a brief. Each participant who filed a brief under subrule 57(2) shall provide the designated participant with a copy of each authority on which it primarily relied in its brief that was not primarily relied on in any other brief filed under subrule 57(1). Each participant who filed a brief under subrule 57(3) shall provide the designated participant with a copy of each authority on which it primarily relied in its brief that was not primarily relied on in briefs filed pursuant to subrule 57(1) or (2).

(3)  The costs for compiling the appendix shall be borne equally by all participants who file briefs.

Motions

61.  (1)  A motion shall be made by Notice of Motion in writing (model form provided in the Schedule) unless the circumstances make it unnecessary or impracticable.

(2)  Every Notice of Motion, and any affidavit in support thereof, shall be accompanied by a proposed order of the panel (model form provided in the Schedule) and shall be filed with the responsible Secretariat, together with proof of service on all participants.

(3)  Every Notice of Motion shall contain the following information:

(a)  the title of the panel review, the Secretariat file number for that panel review and a brief descriptive title indicating the purpose of the motion;
(b) a statement of the precise relief requested;
(c)  a statement of the grounds to be argued, including a reference to any rule, point of law or legal authority to be relied on, together with a concise argument in support of the motion; and
(d)  where necessary, references to evidence in the administrative record identified by page and, where practicable, by line.

(4)  The pendency of any motion in a panel review shall not alter any time period fixed in these rules or by an order or decision of the panel.

(5)  A Notice of Motion to which all participants consent shall be entitled a Consent Motion.

62. Subject to subrules 20(2) and 76(5), unless the panel otherwise orders, a participant may file a response to a Notice of Motion within 10 days after the Notice of Motion is filed.

63. (1)  A panel may dispose of a motion based upon the pleadings filed pertaining to the motion.

(2)  The panel may hear oral argument or, subject to subrule 26(b), direct that a motion be heard by means of a telephone conference call with the participants.

(3)  A panel may deny a motion before responses to the Notice of Motion have been filed.

64.  Where a panel chooses to hear oral argument or, pursuant to subrule 63(2), directs that a motion be heard by means of a telephone conference call with the participants, the responsible Secretary shall, at the direction of the chairperson, fix a date, time and place for the hearing of the motion and shall notify all participants of the same.