Commission Practices on Section 183 Applications (CER Act)

1. Introduction

The Commission is committed to adjudicative excellence through continual improvement and consistently strives to implement regulatory efficiencies. By streamlining hearing processes, removing outdated procedural requirements, and clarifying expectations, the Commission aims to reduce administrative burden, enhance transparency and support efficient and effective participation in our processes for everyone involved.

This document provides information on the Commission's approach to section 183 applications, including how completeness is considered, replacement of the “list of Issues” with a standardized list of “Factors to be Considered”, and the introduction of standardized hearing steps. This information is relevant to section 183 non-designated projectsFootnote 1 under the Canadian Energy Regulator Act (CER Act).

2. Completeness

Completeness is an opinion of the Commission that the application is complete for the purposes of beginning the assessment phase – or hearing – in accordance with statutory timelines. The Commission forms this opinion with the support of the CER’s expert staff, including specialists in engineering, financial regulation, economics, environmental protection and socio-economic matters. 

Section 183 of the CER Act requires the Commission to form an opinion as to whether the applicant has filed a complete application, after which the Commission has up to 450 days to complete its assessment and submit its recommendation report to the Minister. As specified in subsection 183(4), the Lead Commissioner is responsible for setting the precise time limit within which the Commission must submit its report.Footnote 2

Completeness is an initial threshold question. The Commission’s opinion that an application is complete does not:

  • represent acceptance or approval of the project;
  • indicate that the applicant has provided all information necessary for the Commission to issue a recommendation on the project;
  • mean that the Commission agrees with the applicant’s information, analysis, or conclusions; or,
  • prevent participants from meaningfully participating in, and making their case through, the hearing process that follows.

3. Approach and criteria for considering completeness

The Commission arrives at its opinion on completeness by considering the information in an application focusing on:

  • the factors in subsection 183(2) of the CER Act which the Commission must consider;
  • the CER Filing Manual and checklist, which provides direction to companies regarding the information a complete application is expected to contain; and
  • other information pertinent to any relief request associated with the application (e.g. under other sections of the CER Act or Onshore Pipeline Regulations).   

To determine whether an application is complete for the purposes of beginning the assessment phase, the Commission will evaluate the nature and extent of any information gaps, and whether these gaps can be resolved through the hearing process.  

The Commission will form its opinion on completeness without seeking external input. This approach has been considered and affirmed by the Federal Court of Appeal on an analogous provision in the National Energy Board,Footnote 3 and reflects the Commission’s general practice. In addition, the Commission recently determined that it is not required to institute a comment process on completeness as a standard process step.Footnote 4 In reaching that determination, the Commission considered its obligations under the CER Act, including the preambular provisions highlighting predictability, certainty, and timely decision-making, as well as those referencing the Government of Canada’s commitment to implementing Reconciliation and the United Nations Declaration on the Rights of Indigenous Peoples. The Commission also considered the early engagement participation opportunities, as well as future participatory opportunities in the hearing.

The Commission will form its opinion on completeness without issuing Information Requests (IRs) to the applicant. Where the Commission is of the opinion that there are significant gaps that cannot be filled through the hearing process, the Commission will find the application incomplete. In that case, the Commission would notify the applicant and explain why the application was found to be incomplete.

The Commission expects applicants to request pre-application meetings with the CER. These meetings between prospective applicants and CER staff are one of the options offered to promote a better understanding of the CER’s application process and regulatory requirements, including early engagement. Pre-application meetings give applicants an opportunity to discuss filing requirements and can lead to more complete applications.

4. Factors to be Considered

Subsection 183(2) of the CER Act requires the Commission to take into account certain specified factors, in addition to all considerations that appear to it to be relevant and directly related to the pipeline, when making its recommendation on a project. 

The Commission does not intend to seek comments on this non-exhaustive and mandatory list of factors in its hearings going forward. Upon a detailed review of the List of Issues over the last 10 years, the Commission found that the issues raised by participants generally fit within one or more of the factors outlined in subsection 182(2) of the CER Act, and therefore did not result in any substantive changes. Further, the Commission is required to consider any matter raised during the hearing process that it determines to be relevant, regardless of whether the list of Factors to be Considered covers that matter.

To ensure clarity and streamline hearings going forward, the Commission will now use the standardized list of Factors to be Considered for its hearings as set out in subsection 183(2) of the CER Act:

  • the environmental effects, including any cumulative environmental effects;
  • the safety and security of persons and the protection of property and the environment;
  • the health, social and economic effects, including with respect to the intersection of sex and gender with other identity factors;
  • the interests and concerns of the Indigenous peoples of Canada, including with respect to their current use of lands and resources for traditional purposes;
  • the effects on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982;
  • the availability of oil, gas or any other commodity to the pipeline;
  • the existence of actual or potential markets;
  • the economic feasibility of the pipeline;
  • the financial resources, financial responsibility and financial structure of the applicant, the methods of financing the pipeline and the extent to which Canadians will have an opportunity to participate in the financing, engineering and construction of the pipeline;
  • the extent to which the effects of the pipeline hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change;
  • any relevant assessment referred to in section 92, 93 or 95 of the Impact Assessment Act; and
  • any public interest that the Commission considers may be affected by the issuance of the certificate or the dismissal of the application.

5. Standard Hearing Steps

The Commission has established the following list of default steps in section 183 application hearing processes. The schedule in which the steps will occur will be determined on a project-specific basis by the Commissioners assigned to that file. Establishing default steps is expected to improve predictability in the Commission’s hearing processes as well as efficiency. Participants need not request the steps identified below, and the Commission will consider any comments regarding sequencing and timing, or requesting additional hearing steps, prior to issuing the Hearing Order. The Commission will not solicit comments on the Hearing Order once issued.    

Process steps that participants can expect to see in a section 183 hearing include:

  • One round of IRs from intervenors to the applicant;
  • Intervenors file written evidence;
  • Opportunities to provide oral Indigenous knowledge;
  • One round of IRs to intervenors from the applicant and other intervenors;
  • Applicant files reply evidence;
  • Oral cross-examination OR one round of intervenor IRs to the applicant on reply evidence;
  • Commission release of potential conditions for comments; and
  • Argument.

The process may also include Commission IRs to the applicant and intervenors. The Commission will ask as many IRs as it considers necessary at any time in the process.

The Commission may also add additional steps on a project-specific basis, including:

  • Additional round(s) of IR(s);
  • Motions to compel IR responses;
  • Workshops, such as technical workshops or workshops on conditions

6. Motions

Any person may raise a matter for Commission decision during the course of a hearing. To do so, the person must bring a Notice of Motion. As examples, a person must file a motion if they wish to request a change to a process step deadline, or assert that the applicant’s reply evidence is improper. Motions should be filed as soon as the person is aware of the issue. The Commission may deny motions that are not filed on a timely basis. See section 35 of the National Energy Board Rules of Practice and Procedure, 1995Footnote 5 for further information.  

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