Suzanne Sonneborn
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This subrule refers to the tribunal’s “e-filing system.” It is unclear what this means
because in Rule 109, there is reference to the “hearing system-approved electronic
filing system” and not the “e-filing system.”
8. Rule 219: Multiple comments:
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Subrules (1)-(2), (4) and (6): These subrules refer to the tribunal’s “e-filing system.” It
is unclear what this means because in Rule 109, there is reference to the “hearing
system-approved electronic filing system” and not the “e-filing system.”
Subrule (4): This subrule provides that for an electronic filing, it is considered filed
when received by the Tribunal, but does not provide a mechanism for notifying the
filing party when the Tribunal has received it.
Subrule (6) provides, “If the required filing fee is paid within 14 days after the issuance
of the notice of no action, action shall be taken on the motion based on the date that
the motion was originally submitted to the tribunal.” This provision is problematic
because the respondent will likely not know that the petitioner has cured the defect
(e.g., paid the fee) and it appears that these rules would require the respondent to file
its response based on the date of the original submission.
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Subrule (6) refers to “delivery,” but in Rule 109 the reference is to “personal delivery”
making this ambiguous.
Subrule (7) states, “If the required proof of service is filed within 14 days after the
issuance of the notice of no action, action shall be taken on the motion or document
based on the date the motion or document was originally submitted to the tribunal.”
Similar to the concerns regarding subrule (6), the respondent may not even have
received notice of a filing but would still be required to respond based on the date of
the original submission. This appears to require that the respondent maintain constant
surveillance of the docket rather than being able to rely on notice.
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Subrule (8): This subrule appears to automatically insert into the procedure an
additional 14 days to file (plus the time it takes for the Tribunal to issue the Notice of
No Action) for a petitioner who does not timely file its motions or responses.
9. Rule 221: Multiple comments:
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Subrule (2): This subrule states, “If the tribunal determines that an amendment
addresses more than typographical or transpositional errors, the tribunal shall issue a
notice of no action.” Because this subrule appears to leave the question of whether an
amendment is merely typographical solely within the discretion of the Tribunal, without
input by (or recourse for) the opposing party, this could be misused as a vehicle to
attempt to change legal positions/theories under the guise of “typographical errors.”
At the very least there should be a mechanism for the opposing party to respond.
Subrule (11): The proof of service requirement in the second sentence is confusing as
it seems to provide that the person signing the proof of serve (on behalf of the filing
party) may be the same person who acknowledges service on behalf of the receiving
party.
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Subrule (12): In the second sentence, add “and/or appearances” after the word
“pleadings” to address other scenarios such as if new counsel is assigned to the case
after the petition is filed and enters a Notice of Appearance. The opposing party should
be able to rely on the information contained in the appearance.
10. Rule 225(4): This subrule imposes a requirement that the filer of a motion for immediate
consideration actually speak with all other parties. This could be problematic as the other
representatives may not be available or where opposing representatives refuse to speak with
the other party’s representatives.
11. Rule 227: The elimination of the requirement in subrule (5) that the petition include a copy of
the “assessment or other notice” being appealed from is problematic, unfair, and could lead to
unintended consequences. For example, this runs afoul of the concept of “notice pleading”
(and may impair due process) as the respondent may not be able to ascertain the full extent
