Who can initiate a formal complaint using the NWPTA dispute resolution mechanism?
What is the difference between a Party to Party dispute and a Person to Party dispute?
When can a person initiate a complaint under the NWPTA?
What may a person initiate a complaint about?
How does a person initiate a formal complaint?
If a province does not agree to take a person’s complaint forward, what recourse does the person have?
What are “consultations”?
What is the next step if consultations are unsuccessful?
Are there any costs associated with the process that a person would be required to pay?
Is there any compensation for a person’s expenses if the person is successful?
Where will the panel hearing take place?
Who is allowed to attend the panel hearing?
What will a panel decide?
Are there any penalties that can be awarded for non-compliance?
What is the maximum penalty that can be awarded by the compliance panel and to whom is the penalty award given?
Can another NWPTA province that is not the subject of the complaint participate in a dispute process?
What happens if a province that was found not to be in compliance with the NWPTA does not take corrective action?
What are the provincial contacts for formal complaints under the NWPTA?
Who can initiate a formal complaint using the NWPTA dispute resolution mechanism?
The NWPTA allows the three governments as well as persons (that is, individuals, businesses, unions, professional associations, non-governmental and other organizations from British Columbia, Alberta and Saskatchewan) to initiate formal complaints under the NWPTA.
What is the difference between a Party to Party dispute and a Person to Party dispute?
A “Party” is one of the signatories to the NWPTA – the Governments of British Columbia, Alberta or Saskatchewan. Therefore, a Party to Party dispute is one which is initiated by one of these governments, which can include acting on behalf of a person. A Person to Party dispute is one which is pursued by a person on its own behalf against the government being complained against.
When can a person initiate a complaint under the NWPTA?
A person may initiate a complaint within two years from the date the person first knew, or should have first known, of the alleged inconsistency with the NWPTA.
However, a person must first exhaust all other reasonable means to resolve their complaint. For example, where a dispute falls within the jurisdiction of a regulatory body with an established dispute resolution or appeal process, that process must be used before requesting consultations under the NWPTA. The two year clock would start once this process has been completed.
What may a person initiate a complaint about?
A person may initiate a complaint if they believe a NWPTA province, or any of its government entities, is in breach of their obligations under the NWPTA. (However, if the alleged breach relates to a specific procurement, the bid protest mechanism must be utilized. For further information, click here).
How does a person initiate a formal complaint?
A person initiates a formal complaint by writing a province to ask that province to initiate consultations on their behalf with the other province responsible for the alleged breach of the obligations under the NWPTA. The form provided in Schedule 1 must be used for such a request. The requested province will determine within 21 days of a person’s request if they will request consultations on the person’s behalf. If the province does not formally respond to the person within that time, the answer is deemed to be a refusal of the person’s request.
Where a person believes that the issue being complained about is inconsistent with both the Agreement on Internal Trade (AIT) (a trade agreement among the federal government, 10 provinces and two territories) and the NWPTA, the person must choose which agreement to make the complaint under and, once chosen, the person will have no recourse to the other agreement for the same complaint.
If a province does not agree to take a person’s complaint forward, what recourse does the person have?
If a province decides not to pursue a complaint on behalf of a person, the person has the ability to take forward the complaint on their own. To do this, the person must write to the province responsible for the alleged breach (see provincial contacts below) and request consultations with that provincial government to resolve the matter. The form provided in Schedule 2 must be used for such a request and copied to the administrator.
Consultations are a series of discussions which can involve sharing information. Consultations are intended to provide the opportunity for both sides of a complaint to fully discuss the issue at hand with the goal of reaching a mutually satisfactory resolution, thereby negating the need to convene a panel.
What is the next step if consultations are unsuccessful?
If a mutually satisfactory resolution cannot be achieved through consultations, either consultant can request the establishment of a dispute resolution panel. A person will be required to acknowledge, in writing, that the person accepts the process and its terms, including the responsibility for costs associated with dispute resolution proceedings.
Are there any costs associated with the process that a person would be required to pay?
A person is required to pay all direct costs of their own participation in the panel process including, but not limited to travel and accommodation, personnel, legal counsel, and other administrative costs.
The panel may, prior to the panel hearing being held, request that a person provide a deposit to cover the person’s portion of the estimated costs of the panel and the panel proceedings. These costs would normally include the per diem costs of the panel members and their travel expenses to and from the hearing as well as the costs for hearing facilities, equipment, transcription services and other costs directly associated with the hearing.
The panel will use its discretion in apportioning the costs between the disputants for the establishment and operation of the panel. This decision will be largely guided by the principle that the costs of the dispute should be borne by the unsuccessful disputant. The panel may also order the unsuccessful disputant to pay some or all of the costs incurred by the successful disputant.
Is there any compensation for a person’s expenses if the person is successful?
Possibly. The panel’s apportionment of costs can include ordering the unsuccessful disputant to pay some or all of the legal costs incurred by the successful disputant, so long as such costs are claimed during the dispute proceedings.
Where will the panel hearing take place?
The panel hearing will take place within the territory of the province being complained against at a location determined by the panel.
Who is allowed to attend the panel hearing?
Subject to any concerns relating to confidentiality, panel hearings must be open to the public.
Within 45 days after the panel hearing, the panel will release a final report. This report will contain:
- findings of fact;
- rulings on interpretation and whether the province’s measure being challenged is consistent with the Agreement;
- findings on the possible economic effect of that measure;
- recommendations, if any, to resolve the dispute;
- time frames for implementation of the panel’s recommendations; and
- a determination as to the amount and apportionment of costs
Are there any penalties that can be awarded for non-compliance?
Yes. However, these penalties can only be imposed on the province complained against after:
- a panel finds that the province complained against, or one of its entities, is not in compliance with their NWPTA obligations; and
- a subsequent compliance panel determines that the province has failed to ensure compliance within the deadline set by the original panel.
What is the maximum penalty that can be awarded by the compliance panel and to whom is the penalty award given?
The maximum monetary penalty is $5 million. A monetary penalty may only be levied against the provincial governments of British Columbia, Alberta and Saskatchewan. It would only be levied after a period of time sufficient to demonstrate that the province complained against has and will continue to fail to bring itself into compliance with its obligations under the NWPTA . The penalty would be awarded to the province or person who successfully took the complaint forward.
Can another NWPTA province that is not the subject of the complaint participate in a dispute process?
Any NWPTA province may participate in the consultations. In addition, it may act as an intervening Party at the panel stage with the right to make written and oral submissions and receive the written and oral submission of the other disputants. It may also attend panel hearings as an audience member.
What happens if a province who was found not to be in compliance with the NWPTA does not take corrective action?
The panel will set a deadline for the province to bring itself into compliance. If the province fails to do so within that time period, a compliance panel may be convened and, if it is confirmed that the province still has not brought itself into compliance, the compliance panel may impose a monetary penalty on the non-complying province.
What are the provincial contacts for formal complaints under the NWPTA?
Please use the contact information provided on the Contact Us page for all correspondence related to a formal complaint.
