2005 No. 21.

THE COMMUNICATIONS (PRACTICE AND PROCEDURE) REGULATIONS, 2005. ARRANGEMENT OF REGULATIONS

Regulation.

1.	Title
2.	Application of Regulations
3.	Objectives of Regulations
4.	Interpretation
5.	Parties before the Commission
6.	Third party interests and application to intervene
7.	Service of documents and proof of service
8.	Informal requests and complaints
9.	Pleadings
10.	Complaints
11.	Answers
12.	Reply
13.	Time limits for filing pleadings
14.	Status conference
Regulation.
15.	Appointment of a conciliator
16.	Interrogatories
17.	Discovery and production of documents
18.	Confidentiality of information
19.	Initial briefs
20.	Pre-hearing conferences
21.	Summary decision
22.	Order of hearing procedure
23.	Proposed findings and conclusions
24.	Certification of transcript
25.	Final decision
26.	Composition of the commission in proceedings
27.	Powers of the commission
28.	Commission investigations

29.      Modification of licence

30.      Notice of violations

31.      Suspension or revocation of operator licence

32.      Witness summons

33.      Expert witnesses

2005 No. 21.

 

The Communications (Practice and Procedure) Regulations, 2005.

(Under section 94 of the Uganda Communications Act, Cap 106)

In exercise of the powers conferred upon the Uganda Communications Commission by Section 94 of the Uganda Communications Act, these Regulations are made this 7th day of January, 2005.

1.          Title

These Regulations may be cited as the Communications (Practice and Procedure) Regulations, 2005.

2.          Application of Regulations

These Regulations apply to proceedings or acts of the Commission in relation

to—

(a)   applications for licences and applications for modification or renewal of licences;

(b)   suspension or revocation of licences;

(c)    orders issued by the Commission;

(d)   dispute resolution and decision making practices and procedures;

(e)    investigations by the Commission;

f)enforcement of the provisions of the Act;

(a)   the general practice and procedures of the Commission in implementing the Act.

3.          Objectives of Regulations

T h e objectives of these Regulations are—

(a)   to establish rules and principles of fairness, natural justice and equity in

proceedings and matters concerning and relating to decision making, and dispute resolution by the Commission, arising under the Act;

(b)    to consolidate and harmonise the decisions and determinations of the

Commission in performing its functions under the Act, as a communications regulatory authority;

(c)    to establish a harmonised framework for the Commission proceedings and

consistent decision making processes, procedures and practices based on the rule of law, natural justice, equity and fair hearing; and

(d)   to provide for alternative means of dispute resolution by the Commission in the communication sector consistent with commercial justice, equity, fairness and expediency.

4.      Interpretation

In these Regulations, unless the context otherwise requires—

“Act” means the Uganda Communications Act, Cap 106;

“Commission” means the Uganda Communications Commission established under the Act;

“communications” means telecommunications, radio communications and postal communications;

“communications services” means services performed consisting of the dissemination or interchange of sound, video or data content, using postal, radio, or telecommunications media, but excludes broadcasting;

“consumer” means any person who uses available telecommunications service for purposes which are outside his or her trade, business or profession;

“data” means the use of binary signals to transmit information from one computer or apparatus to another;

“eligible person” means a person with sound financial standing who is not subject to any criminal proceedings and who is capable of carrying out the functions of an operator;

“information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilising, or making available information through telecommunications, including electronic publishing other than the use of the capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service;

“licence” means a licence issued under the Act;

“major licence” with reference to postal services, includes provisions for the collection, conveyance and delivery by land, water or air of national and international postal articles throughout Uganda, the up-keeping of postal facilities and the issue of postage stamps;

“major licence” with reference to radio communications and telecommunications, includes a licence for the provision of local, long distance or international telephone services, trunk capacity resale, rural telecommunications, store and forwarding messaging and cellular or mobile services;

“minor licence” with reference to postal services, includes any licence which is not a major licence;

“proceedings” means any matter or circumstance in relation to the communications sector, arising under the Act, that requires determination or a decision of the Commission, including the proceedings or acts of the Commission specified in regulation 2;

“public operator” means an operator who is licensed by the Commission to offer services for payment and without discrimination to the public, including other operators;

“service provider” means a person who offers services to end users, by using the basic service and infrastructure provided by a network operator on a re-sale basis, or by providing services through his or her own infrastructure where it forms part of a network operation;

“subscriber” means any person provided with a telecommunications service by an operator, and who is responsible for payment of all charges and rentals of the service;

“telecommunications” means the emission, transmission or reception through the agency of electricity or electromagnetism of any sound, signal, sign, writing, image or intelligence of any nature by wire, radio, optical or other electromagnetic systems whether or not the sound, signal, sign, writing, image or intelligence is subjected to rearrangement, computation or other process by any means in the course of its emission, transmission or reception;

“telecommunications network” means a transmission system; and where applicable, switching equipment and other resource which permits the conveyance of signals between defined termination points by wire, radio, optical or other electromagnetic means;

“telecommunications service” means a service consisting of the conveyance or reception of any sound, sign, signal, writing, image or intellegence by wire, optical or other electronically guided media system whether or not the sound, sign, signal, writing, image or intelligence is subjected to rearrangement, computation or other process by any means in the course of its transmission, emission or reception;

“user” means an individual, including a consumer or operator using or requesting publicly available communications services.

5.           Parties before the Commission

(1)         A party may appear before the Commission and be heard in person or throu gh an advocate.

(2)                    Except where expressly provided, a duly authorised officer or employee of a corporation, may act for the corporation in any matter.

(3)                     A person in a representative capacity, transacting business with the Commission, may be required by the Commission to provide evidence of the authority to act in that capacity.

(4)                       An individual summoned to appear in person in a Commission proceedings may be accompanied, represented, or advised by an advocate.

(5)                    An advocate may advise his or her client in confidence, either upon the advocate’s own initiative or that of the client, before, during or after the conclusion of a proceeding.

(6)                    An advocate for a party shall be permitted to make objections on record, and to state briefly the basis for the objections, in connection with any examination of his or her client.

(7)                   At the conclusion of the examination of his or her client, an advocate may ask clarifying questions where the questioning is necessary or desirable to avoid ambiguity or incompleteness in the responses previously given in testimony.

(8)                    An advocate for a party shall not examine or cross-examine any witness, or offer documentary evidence, except where the advocate is authorised by the Commission to do so.

(9)                   In any proceeding before the Commission it shall be lawful to include as a party, in addition to the operator, any person interested in the matter under consi deration.

(10)                    Where another party is included as a party to proceedings before the Commission, all inquiries, investigations, orders, and decrees may be made with reference to and against that other party in the same manner, to the same extent, and subject to the same provisions as may be authorised by the law with respect to operators.

(11)                    In a suit for the enforcement of an order for the payment of money, a party in whose favour the Commission makes an award for damages by a single order, may be joined as a complainant, and any other party to the order awarding the damages may be joined as a defendant, and the suit may be maintained by the joint complainants and against the joint defendants.

(12)                     In case of a joint suit, the recovery, if any, may be by judgment in favour of any of the complainants, against the defendant found to be liable to that complainant.

(13)                     Two or more complainants may join in one complaint where their complaints are against the same defendant and concern substantially the same facts and alleged violation of the Act.

(14)                      Two or more grounds of complaint involving the same principle, subject, or statement of facts may be included in one complaint, but shall be separately stated and numbered.

6.           Third party interests and application to intervene

(1)          A person who qualifies as a party with interest in any Commission proceeding and who is not named as a party in the proceeding, may apply to become a party, by filing an application for intervention showing the basis of his or her interest.

(2)                   Where a person’s interest in any proceeding is established, an application to intervene shall be granted.

(3)                    An application to intervene shall specify the interest of the applicant in the proceedings, how the applicant’s participation will assist the Commission in the determination of the issues in question and any proposed issues in addition to those already designated for hearing, and shall be accompanied by the affidavit of a person with knowledge of the facts specified in the application.

(4)                    The Commission may grant or deny an application or permit intervention by a person, limited to a particular stage of the proceeding.

(5)                    A person who wishes to appear and give evidence on any matter and who informs the Commission of his or her intention, shall be notified by the Commission when the matter is designated for hearing.

(6)                     A person shall not be excluded from giving any relevant material and competent testimony at a hearing where he or she lacks a sufficient interest to justify his or her intervention as a party in the matter.

(7)                     The Commission may, upon an application by a party to a proceeding before it, or on its own motion, for the proper dispatch of business and to meet the ends of justice, consolidate for hearing a case, which involves the same applicant or involves substantially the same issues.

7.           Service of documents and proof of service

(1) A document may be served upon a party, his or her advocate or other duly constituted agent by delivering or mailing a copy of the document.

(2)                   Delivery of a document under this regulation means—

(a)                   handing a copy of the document to a party, his or her advocate, or other

duly constituted agent;

(b)                   leaving a copy of the document with a clerk or any other person in charge

of the office of the person to be served;

(c)                   where there is no one in charge of the office of the person to be served,

leaving a copy of the document in a conspicuous place in the office; or

(d)                   where the office of a person to be served is closed or where a person to be

served has no office, leaving the document at his or her dwelling house or usual place of abode with a person of suitable age and description, residing in the house.

(3)                    A person who delivers a document shall file proof of service with the Commission, before action is taken, showing the time and manner of service.

(4)                    Proof of service may be by written acknowledgement of service or by certificate of the person effecting the service or by other proof which is satisfactory to the Commission.

(5)                   Adjournment of any proceeding or hearing or extensions of time for filing or performing any act required or allowed to be done within a specified time, may be granted by the Commission upon a motion showing good cause.

8.           Informal requests and complaints

(1)         Except where formal procedures are required under these Regulations, a request for action may be submitted informally as a complaint in written form, specifying the facts relied upon, the relief sought, the statutory or regulatory provisions, if any, under which the request is filed, the relief sought, and the interest of the person submitting the request.

(2)                   An informal complaint shall be in writing and shall contain—

(a)                   the name, address and telephone number of the complainant;

(b)                   the name of the operator against which the complaint is made;

(c)                   a complete statement of the facts showing that the operator did or omitted

to do something, in contravention of the Act; and

(d)                   the specific relief or remedy sought.

(3)                     The Commission shall forward any informal complaint received to the concerned operator for investigation, and the operator shall, within fifteen days from the date of receipt of the complaint, advise the Commission of his or her response to the complaint in writing and send a copy of the response to the complainant.

(4)                    Where there are clear indications from the advice of the operator against whom a complaint is made or from other communication with the parties, that a complainant is satisfied, the Commission may in its discretion close the proceedings and communicate it to the complainant.

(5)                     In all other cases, the Commission shall inform the complainant of its decision on the matters raised and where the complainant is not satisfied with an operator’s response and the Commission’s decision, it may file a formal complaint with the Commission.

(6)                    Where an informal complaint is not satisfied, a complainant may file a formal complaint with the Commission.

(7)                     A complaint filed under subregulation (6) shall be considered to have been filed on the same date as the informal complaint, where the informal complaint—

(a)                   is filed within six months from the date of the operator’s report;

(b)                   makes reference to the date of the informal complaint; and

(c)                   is based on the same cause of action as the informal complaint.

(8)                     Where no formal complaint is filed within the six month period, a complainant shall be deemed to have abandoned the unsatisfied informal complaint.

9.           Pleadings

(1) Formal complaint proceedings shall be in a written record form consisting of the complaint, the answer, and a joint statement of admitted facts, disputed facts and key legal issues, and shall include all associated affidavits, exhibits and other attachments.

(2)                    Formal complaint proceedings may also require or permit other written submissions such as briefs, written interrogatories and other supplementary documents or pleadings.

(3)                    Pleadings shall be clear, concise, and explicit, and all matters concerning the claim, defence or requested remedy including damages, shall be pleaded fully and specifically.

(4)                    Pleadings shall contain facts which if true, are sufficient to constitute a contravention of the Act, regulations or orders of the Commission made under the Act, or a defence to the alleged contravention.

(5)                   The facts of a pleading shall be supported by relevant documentation or affidavits and legal arguments shall be supported by appropriate judicial or statutory authority or authority of the Commission.

(6)                   Each party shall be responsible for the accuracy and completeness of all information and supporting authority furnished in a complaint proceeding, and the information and the legal authorities submitted shall be current and updated and made in a timely manner at any time before a decision on a complaint is made.

10.                   Complaints

(1) A formal complaint shall contain—

(a)   the name of the complainant and defendant;

(b)   the occupation, address and telephone number of the complainant and to

the extent known, of the defendant;

(c)    the name, address, and telephone number of the complainant’s advocate,

if represented;

(d)   reference to the provisions of the Act or regulations alleged to have been

violated;

(e)    a complete statement of facts which if proven true, constitute a violation

of the provisions of the Act or regulations, supported by relevant documentation, including copies of relevant written agreements, offers, counter offers, denials, or other related correspondence;

(f)     a detailed explanation of the manner and time period in which an operator

allegedly violated provisions of the Act, order or rule of the Commission, including a full identification or description of the communications, transmissions, services, or other operator conduct complained of and the nature of any injury allegedly sustained by the complainant;

(g)   proposed findings of fact, conclusions of law, and legal analysis relevant

to the claims and arguments specified in the complaint;

(h)   the relief sought, including recovery of damages and the amount of

damages claimed, if known;

(i)     certification that the complainant has, in good faith, discussed or

attempted to discuss, the possibility of settlement with each defendant prior to filing the formal complaint, including a statement that prior to filing the complaint, the complainant mailed a certified letter outlining the allegations that form the basis of the complaint to the defendant operator and invited a response within a reasonable period of time and a brief summary of all additional steps taken to resolve the dispute prior to filing the formal complaint;

(j)an indication whether a separate action is filed with the Commission, any court, or other government agency, based on the same claim or same set of facts, in whole or in part;

(k)an indication whether a complaint seeks prospective relief identical to the relief proposed or at issue in a proceeding that is concurrently before the Commission;

(1)                 a description of all documents, data compilations and tangible things in a

complainant’s possession, custody, or control that are relevant to the facts alleged with particularity in the complaint, including for each document—

(i)                                                   the date it was prepared, mailed, transmitted, or disseminated;

(ii)                                                   the author of the document;

(iii)                                                   the recipient or intended recipient of the document;

(iv)                                                   the physical location of the document; and

(v)                                                     a description of the relevance of the document to the matters

contained in the complaint;

(m)copies of all affidavits, documents, data compilations and tangible things in the complainant’s possession, custody, or control, upon which the complainant relies or intends to rely to support the facts alleged and legal arguments made in the complaint;

(n)a completed formal complaint intake form;

(o)         verification of the filing payment required; and

(p)a certificate of service.

(2)                   Where recovery of damages is sought, the complaint shall contain a clear and unequivocal request for damages and appropriate allegations in support of the claim.

(3)                   Where recovery of damages is sought, a complainant shall include in the complaint—

(a)                   a computation of each category of damages for which recovery is sought,

including an identification of all relevant documents and materials or other evidence to be used by the complainant to determine the amount of the damages; or

(b)                  an explanation of—

(i)                                                   the information which is not in the possession of the complainant

and which is necessary to develop a detailed computation of damages;

(ii)                                                   why the information is not available to the complainant;

(iii)                                                      the factual basis the complainant has for believing that the

evidence of damages exists; and

(iv)                                                     a detailed outline of the methodology to be used to create a

computation of damages with the evidence.

(4)                   Issues concerning the amount of damages, if any, may be submitted the Commission, at its own initiative or where the parties request, to a mediator for mediation.

(5)                     A mediator shall be, identified by agreement of the parties and where there is no agreement, designated by the Commission.

(6)                    The Commission may, in its discretion, order a defendant to post a bond for, or deposit into an interest bearing escrow account, a sum equal to the amount of damages or a lesser sum, which in the opinion of the Commission upon preliminary investigation, is likely to be ordered after the issue of damages is fully litigated.

(7)                    The Commission shall order the grant of a relief, upon consideration of the following factors—

(a)                     the complainant’s potential irreparable injury in the absence of the

deposit;

(b)                   the extent to which damages can be accurately calculated;

(c)                   the balance of the hardships between a complainant and a defendant; and

(d)                   whether public interest considerations favour the posting of the bond or

ordering of the deposit.

(8)                    The Commission may in its discretion, end adjudication of damages with a determination of the sufficiency of a damages computation method or formula.

(9)                      The parties shall negotiate in good faith an agreement on the exact amount of damages using the Commission’s mandated method or formula, and within thirty days of the release date of the damages order, the parties shall submit jointly to the Commission—

(a)                   a statement detailing the parties’ agreement on the amount of damages;

(b)                   a statement that the parties are continuing to negotiate in good faith and a

request that the parties be given an extension of time to continue

negotiations; or

(c)                   a statement detailing the bases for the continuing dispute and the reasons

why no agreement can be reached.

11.      Answers

(1)    An operator upon whom a copy of a formal complaint is served, shall answer the complaint within fifteen days of service of the formal complaint by the complainant, except where the time is extended by the Commission.

(2)                    An answer shall advise a complainant and the Commission of the nature of any defence, and shall respond specifically to all the material allegations of a complaint.

(3)                    A defendant shall not make a general denial and where the defendant does not have sufficient knowledge or information to form a belief as to the truth of an averment, the defendant shall so state and it shall have the effect of a denial.

(4)                    An answer shall contain proposed findings of fact, conclusions of law, and legal analysis relevant to the claims and arguments specified in the answer.

(5)                    An answer shall include a description of all documents, data compilations and tangible things in the defendant’s possession, custody, or control that are relevant to the facts alleged with particularity in the answer, including for each document—

(a)                   the date it was prepared, mailed, transmitted, or otherwise disseminated;

(b)                   the author of the document;

(c)                   the recipient or intended recipient of the document;

(d)                   the physical location of the document; and

(e)                   a description of the relevance of the document to the matters in dispute.

(6)                      An answer shall be accompanied by copies of all documents, data compilations and tangible things in the defendant’s possession, custody or control upon which the defendant relies or intends to rely to support the facts alleged and the legal arguments made in the answer.

(7)                    An answer shall contain certification that a defendant has in good faith discussed or attempted to discuss the possibility of a compromise with the complainant prior to filing the formal complaint, including a brief summary of all steps taken to resolve the dispute prior to filing the formal complaint.

12.      Reply

(1)    A complainant may file and serve a reply containing statements of relevant material facts that are responsive to only the specific factual allegations made by a defendant in support of its affirmative defences.

(2)                      Failure to reply to an affirmative defence shall be deemed as an admission of the affirmative defence and of any facts supporting the affirmative defence that are not specifically contradicted in a complaint.

(3)                    A reply shall contain proposed findings of fact, conclusions of law, and legal analysis relevant to the claims and arguments specified in the reply.

(4)                    A reply shall include a description of all documents, data compilations and tangible things in a complainant’s possession, custody, or control, that are relevant to the facts alleged with particularity in the reply and shall include for each document—

(a)                   the date the document was prepared, mailed, transmitted, or disseminated;

(b)                   the author of the document;

(c)                   the recipient or intended recipient of the document;

(d)                   the physical location of the document; and

(e)                   a description of the relevance of the document to the matters in dispute.

(5)                      A reply shall attach copies of all documents, data compilations and tangible things in a complainant’s possession, custody, or control, upon which the complainant relies or intends to rely to support the facts alleged and the legal arguments made in the reply.

(6)                     A complainant that replies to an affirmative defence in its pre-status conference filing shall serve on a defendant at the time of filing the reply, those documents in the complainant’s possession, custody or control, that were not previously produced to the defendant and that are likely to bear significantly on the issues raised in the reply.

13.       Time limits for filing pleadings

(1)    Except as otherwise provided, pleadings in Commission proceedings shall be filed in accordance with these Regulations.

(2)                   An answer to a pleading shall be filed within fifteen days after an original pleading is filed.

(3)                    A person who files an original pleading may reply to an answer to the original pleading within seven days after the time for filing the answer expires.

(4)                   A reply to an answer to original pleading shall be limited to matters raised in the answer and the response to all matters shall be specified in a single pleading and in no case shall separate replies to individual oppositions be filed.

(5)                      An additional pleading may be filed only where it is specifically requested or authorised by the Commission.

(6)                    An objection to a request for stay of any order or to a request for other temporary relief shall be filed within seven days, after the request is filed.

(7)                      The Commission may rule ex parte, upon request for adjournment, extension of time or request for temporary relief, where an answer is not filed.

(8)                      In this regulation “pleading” means any written notice, complaint, objection, request, opposition, reply, brief, proposed finding, submission of law, or document filed with the Commission in a hearing or proceeding.

14.       Status conference

(1)   In any proceeding, the Commission may, in its discretion direct the advocates or the parties to appear before it for a status conference.

(2)                     A status conference shall take place, ten days after the date a reply is filed, except where the Commission orders otherwise.

(3)                   A status conference shall include discussion of—

(a)                   whether the matter should be referred to a conciliator or mediator;

(b)                   simplification or narrowing of the issues;

(c)                    the necessity for or desirability of additional pleadings or evidentiary

submissions;

(d)                    obtaining admissions of fact or agreement between the parties to any or

all of the matters in controversy;

(e)                    settlement of all or some of the matters in controversy by agreement of

the parties;

(f)                  whether discovery is necessary and if so, the scope, type and schedule for

the discovery;

(g)                     a schedule for the remainder of the proceedings and the dates for any

further status conferences; and

(h)                   other matters that may aid in the disposition of the complaint.

(4)                    The parties shall hold meetings and discuss amongst themselves or their advocates prior to a status conference—

(a)                   settlement prospects;

(b)                   discovery if any, and the scope, type and schedule for the discovery;

(c)                   issues in dispute;

(d)                   schedules for pleadings; and

(e)                  joint statements of agreed facts, disputed facts, and key legal issues.

(5)                    The parties shall submit a joint statement of the meetings, including the proposals agreed to and the remaining disputes, to the Commission at least two days before a status conference.

(6)                      In addition to the status conference, any party may request for a conference at any time, after a complaint is filed.

(7)                    During a status conference, the Commission may issue oral rulings on interlocutory matters relevant to the conduct of the proceedings including, procedural matters, discovery, and the submission of briefs or other evidentiary materials.

(8)                    The parties in attendance, unless otherwise directed, shall submit a joint proposed order made during a status conference, to the Commission on the day following the date of the status conference, or as directed by the Commission.

(9)                    Where the parties do not reach an agreement, the joint proposed order shall include the matters on which the parties agree, and each party’s alternative proposals on the matter on which they do not agree.

(10)                     A status conference shall be scheduled by the Commission at such a time and place as the Commission may designate.

(11)                     The failure of any advocate or party, following reasonable notice, to appear at a scheduled conference shall be deemed to be a waiver of the right to be heard by that party and shall not preclude the Commission from conferring with the parties or advocates who are present at the scheduled conference.

(12)                    Each party shall submit to the Commission two days before a status conference, a statement of its disputed facts, the legal issues presented by the complaint and any additional discovery that the party seeks.

15.      Appointment of a conciliator

(1)    The Commission may with the consent of the parties, and upon failure of the parties to consent, appoint a person to be a conciliator or mediator in any proceedings before it.

(2)                   In considering whether to refer a matter to a conciliator, the Commission shall have regard to the following issues—

(a)                   whether the matter is trivial;

(b)                   whether the person whose interests have been allegedly, are likely to be

or are affected, desires to have the matter referred to a conciliator; or

(c)                   where the matter arises from a complaint to the Commission, whether in

the Commission’s opinion—

(i)   the complaint is frivolous or vexatious or is not made in good faith;

(ii)     the interests of a complainant have not or are not likely to be

affected by the conduct in question;

(iii)     there is some other remedy that is reasonably available to the

complainant; or

(iv)      the complainant has made reasonable efforts to negotiate a

resolution of the matter.

(3)                   A conciliator to whom a matter is referred, shall inquire into the disputed conduct to which the matter relates and effect a settlement of the matter.

(4)                   Where a councilor cannot effect a settlement as soon as practicable, he or she shall give to the Commission a written report setting out—

(a)                   his or her recommendations for resolving the matter; and

(b)                   the reasons for those recommendations.

(5)                     A conciliator may decide not to inquire into a disputed conduct or to discontinue an inquiry, where he or she believes that—

(a)                   the matter is trivial;

(b)                    a person whose interest has been allegedly, is likely to be or is affected,

does not wish the inquiry to be made or continued; or

(c)                    where the inquiry arises from a complaint to the Commission and the

conciliator believes that—

(i)   the complaint is frivolous or vexatious or is not made in good faith;

(ii)    the interest of the complainant has not been or is not likely to be

affected or is not affected by the conduct;

(iii)     there is some other remedy that is reasonably available to the

complaint; or

(iv)   a complainant has made reasonable efforts to negotiate a resolution

of the matter.

(6)                     Where a conciliator decides not to inquire into or not to continue to inquire into the conduct in respect of which a complaint is made, the conciliator shall—

(a)                   give the complainant written notice of the decision and the reasons for the

decision; and

(b)                   give the Commission a written report on the matter, including information

in paragraph (a).

(7)                     For the purposes of conducting an inquiry into, or trying to effect a settlement of a matter under this regulation, a conciliator may direct any person to attend a conference presided over by the conciliator, at such a time and place as may be specified in the notice for the conference.

(8)                   A direction under subregulation (7) may be given to—

(a)                   a complainant, where the matter arose as a result of a complaint;

(b)                   a person whose disputed conduct led to the inquiry; or

(c)    any other person whose presence at the conference, the conciliator thinks is reasonably likely to be conducive to settling the matter.

(9)                    Where the Commission receives a conciliator’s report and it is satisfied that the conciliation decisions are sufficient to prevent the disputed conduct to which the matter relates, the Commission may issue a written direction to the person concerned, to take that action within a specified period, or to refrain from taking that action, as the case may be.

(10)                      In issuing a direction the Commission shall have regard to the conciliator’s report.

(11)                   This regulation applies to a person who engages in a disputed conduct.

(12)                      In this regulation, ‘engage in a disputed conduct’ includes being involved in or contributing to that disputed conduct.

(13)                    Where the Commission issues a direction to a person, it shall give the person notice of the reasons for that direction.

(14)                    Where the Commission receives a conciliator’s report in relation to a matter that arose as a result of a complaint, the Commission shall, by written notice, info rm the complainant of—

(a)                   any direction issued in relation to the matter, other than a direction issued

to the complainant; or

(b)                    any decision not to issue a direction in relation to the matter, together

with the reasons for the decision.

16.      Interrogatories

(1)    A complainant may file with the Commission and serve on a defendant, with its complaint, a request for written interrogatories.

(2)                    A defendant may file with the Commission and serve on a complainant, during the period starting with the service of a complaint and ending with the service of its answer, a request for written interrogatories.

(3)                   A request for interrogatories filed and served under this regulation may be used to seek discovery of any non-privileged matter that is relevant to the material facts in dispute, in a pending proceeding.

(4)                     A request for interrogatories filed and served by a complainant after service of a defendant’s answer shall be limited in scope to specific factual allegations made by the defendant in support of its affirmative defences.

(5)                    This regulation shall not be used for the purpose of delay, harassment or obtaining information that is beyond the scope of permissible inquiry related to the material facts in dispute in a pending proceedings.

(6)                     A request for interrogatories filed and served under subregulation (1) shall contain a listing of the interrogatories requested, an explanation of why the information sought in each interrogatory is necessary to the resolution of the dispute and that it is not available from any other source.

(7)                      Oppositions and objections to requests for interrogatories shall be completed three days prior to the initial status conference and may be filed and served as follows—

(a)                   by a defendant within ten days of service of the request for interrogatories

served with the complaint and within five days after the request for

interrogatories served, following service of the answer; and

(b)                     by a complainant within five days after service of the requests for

interrogatories; and

(c)                    the procedure in paragraphs (a) and (b) shall be completed three days

before the initial status conference.

(8)                     The Commission shall at a status conference, consider a request for interrogatories and any objections or oppositions, which are properly filed and served, determine the interrogatories, if any, and set the schedule of the response.

(9)                    Where the Commission determines that an objection is not justified, it shall order that an answer is served, and where an interrogatory is not answered, the Commission may rule that the right to object be waived and may order that an answer is served.

(10)                      Where an answer does not comply fully with this regulation, the Commission may order that an amended answer is served and shall specify the scope and detail of the matters to be covered by the amended answer, and the appropriate procedural consequences including adverse findings of fact and dismissal with prejudice, which may follow from the failure to make a full and responsive answer.

(11)                    The interrogatories ordered to be answered shall be answered separately and fully in writing under oath or affirmation by the party served, or where the party is a public or private corporation or partnership or association, by any officer or agent who shall furnish the information as is available to the party.

(12)                     A requesting party asserting that a responding party has provided an inadequate or insufficient response to a discovery request ordered by the Commission may file an application to compel an answer within ten days of the service of the response, or as otherwise directed by the Commission.

17.      Discovery and production of documents

(1)    Each party to the proceedings shall serve with its initial pleading and reply statement, copies of all documents in its possession, custody or control that are likely to bear significantly on any claim or defence.

(2)                    For the purpose of subregulation (1), the documents shall include data compilations and tangible things.

(3)                    A document is likely to bear significantly on a claim or defence where

it—

(a)                   appears likely to have an influence on, or affect the outcome of a claim or

defence;

(b)                    reflects the relevant knowledge of a person who, if his or her potential

testimony was known, may reasonably be called as a witness by any of

the parties;

(c)                   is something that is reasonably considered necessary to prepare, evaluate

or try a claim or defence; or

(d)                   does not support a disclosing party’s contentions.

(4)                   A party to Commission proceedings may request any other party—

(a)                   to produce and permit inspection and copying or photographing, by or on

behalf of the requesting party, any designated document, paper, book, accounts, letter, photograph, object, or tangible thing which constitutes or contains evidence which is relevant to a hearing or an investigation and which is in the possession, custody, or control of that other party;

(b)                   permit entry upon designated land or other property in the possession or

control of that other party, for purposes of inspecting, measuring, surveying, or photographing the property or any designated object or operation on it.

(5)                    A request under subregulation (4) may not be filed with the Commission but copies of the request shall be served on all the other parties to the proceedings.

(6)                    A party against whom a request is made shall, within ten days comply with the request or object to the request by claiming a privilege or raising any other objection, and where the request is not complied with in whole or in part, the requesting party may file an application with the Commission, to compel production of d ocuments or access to property.

(7)                    An application to compel production of documents or access to property under subregulation (6) shall be accompanied by a copy of the original request and the responding party’s objection or claim of privilege, and shall be filed within five days after the objection or claim of privilege.

(8)                    At a pre-status conference filing, a party to proceedings may request the production of additional documents and shall justify its request by identifying the specific issue or issues on which it expects to obtain evidence from each request.

(9)                    In resolving any dispute involving the production of documents or access to property, the Commission may direct that the materials objected to, be presented for inspection, in camera by the Commission.

18.       Confidentiality of information

(1)    Any material generated in the course of formal complaint proceedings may be designated as proprietary by the party that generates it, where that party believes in good faith that the material falls within an exemption to disclosure.

(2)                   Any party asserting confidentiality for any materials shall indicate this by clearly marking each page, or portion of it, for which a proprietary designation is claimed.

(3)                      Where a proprietary designation is challenged, the party claiming confidentiality shall have the burden of demonstrating, by a preponderance of the evidence, that the material designated as proprietary falls under the standards for non­disclosure.

(4)                   A material marked as proprietary may be disclosed to any person, for use in prosecuting or defending a party to the complaint action, and to the extent necessary to assist in the prosecution or defence of a case.

19.      Initial briefs

(1)    The Commission may, in its discretion or upon a party’s motion showing good cause, require the parties to file briefs summarising the facts and issues presented in the pleadings and other record evidence.

(2)                    Unless otherwise directed by the Commission, a brief shall include all legal and factual claims and defences previously specified in a complaint, answer, or other pleading submitted in the proceedings.

(3)                       A party shall attach to its brief, copies of all documents, data compilations and tangible things, upon which the party relies or intends to rely to support the facts alleged and legal arguments made in its brief and the brief shall contain a full explanation of how each attachment is relevant to the issues and matters in dispute.

(4)                     A party shall attach to its brief any other supporting documentation, accompanied by a full explanation of the relevance of the materials and why the materials were not identified in the statement.

(5)                    Where the Commission authorises the filing of briefs in cases in which discovery is not conducted, the briefs shall be filed concurrently by the complainant and the defendant, at a time that may be designated by the Commission.

(6)                    Where discovery is conducted, briefs shall be filed concurrently by the complainant and the defendant, at a time that may be designated by the Commission.

(7)                      The Commission may require the parties to submit any additional information it deems appropriate for a full, fair and expeditious resolution of the proceedings, including affidavits and exhibits.

20.       Pre-hearing conferences

(1)    The Commission on its own initiative or at the request of any party may direct the parties or their advocates to appear at a specified time and place for a conference prior to a hearing, or to submit suggestions in writing, for the purpose of considering, among other things, the matters specified under subregulation (4), at least thirty days after the effective date of the order fixing the case for hearing, unless good cause is shown for scheduling the conference at a later date.

(2)                      Except where circumstances require, the Commission shall allow a reasonable period prior to the commencement of a hearing, for the orderly completion of all pre-hearing procedures, including discovery, and for the submission and disposition of all pre-hearing applications.

(3)                   Where the circumstances warrant, the Commission shall promptly after a hearing is ordered, call a preliminary pre-hearing conference, to inquire into the use of available procedures contemplated by the parties and the time required for their completion, to formulate a schedule for their completion, and to set a date for commencement of the hearing.

(4)                   A pre-hearing conference shall consider—

(a)                     the necessity or desirability to simplify, clarify, amplify, or limit the

issues;

(b)                   the admission of facts and the genuineness of documents;

(c)                   the procedure of a hearing;

(d)                   the number of witnesses;

(e)                      the necessity or desirability to amend the pleadings and offers of

settlement or proposals of adjustment;

(f)                   narrowing of issues or the areas of inquiry and proof at the hearing;

(g)                   the date for a formal hearing; and

(h)                   any other matters that may expedite the conduct of a hearing.

(5)                    In proceedings where a consent agreement may be negotiated, the parties shall state at a pre-hearing conference whether they are willing to enter negotiations for the consent agreement.

(6)                       A pre-hearing conference shall have an official transcript of its proceedings made.

(7)                    Upon convening a formal hearing in any proceedings, the Commission shall enter on the record, a statement of all actions taken at a pre-hearing conference, the stipulations and agreements of the parties, approved by the Commission, and any special rules which may be deemed necessary to govern the course of the proceeding.

21.       Summary decision

(1)    A party may move for a summary decision of all or any of the issues set for hearing, by filing a motion, supported by an affidavit or by any other material showing that there is no genuine issue of material fact for determination at the hearing, at least ten days before the date set for the commencement of the hearing.

(2)                   Within five days after an application for a summary decision is filed, any other party to the proceedings may file an opposition for summary decision, using an affidavit or any other material showing that—

(a)                   there is a genuine issue of material fact for determination at the hearing;

(b)                    he or she cannot, for good cause present by affidavit or otherwise, facts

essential to justify his or her opposition; or

(c)                   summary decision is inappropriate.

(3)                    The Commission may, in its discretion, set the matter for argument and call for the submission of proposed findings, conclusions, briefs or memoranda of law.

(4)                        The Commission may after consideration of the nature of the proceedings, the issue, the proof, and the need for cross-examination, grant the application for summary decision to the extent that the pleadings, affidavits, materials obtained by discovery or any other means, admissions, or matters officially noticed, show that there is no genuine issue as to any material fact and that a party is otherwise entitled to a summary decision.

(5)                    Where it appears from the affidavits of a party opposing that he or she cannot, for good cause shown, present by affidavit or any other means facts which are essential to justify his or her opposition, the Commission may deny the application, order an adjournment to permit affidavits to be obtained or discovery to be had, or may make such other order as may appear to the Commission to be just.

(6)                    Where all the issues or a decisive issue on an application for summary decision is determined, no hearing or further hearing will be held and the Commission shall issue a summary decision which shall be subject to appeal or review.

(7)                    Where some of the issues on an application for summary decision are decided, or where an application is denied, the Commission shall issue a memorandum and an interlocutory order on the decided issues, and the hearing shall proceed on the remaining issues.

(8)                   The Commission shall take the necessary action to ensure that a summary decision procedure is not abused, and may for that purpose rule in advance of an application that a proceeding is not appropriate for summary decision, and take such other measures as are necessary to prevent any unwarranted delay.

(9)                   Where it appears to the satisfaction of the Commission that an application for summary decision is presented in bad faith or solely for the purpose of delay, or that a motion for a summary decision is patently frivolous, the Commission shall enter a determination to that effect upon the record.

22.       Order of hearing procedure

(1)     At a hearing on a formal complaint a complainant shall, except where the Commission orders, open and close his or her case.

(2)                    At a hearing on objections, the party objecting shall open and close the proceedings where the issues are not specifically adopted by the Commission.

(3)                    At a hearing on order to show cause, to cease and desist, to revoke or modify a license or other similar proceedings instituted by the Commission, the Commission shall open and close the proceedings.

(4)                   At all hearings other than hearings on formal complaints, the respondent shal l open and close the process, unless otherwise directed by the Commission.

(5)                     In all cases not mentioned in subregulations (1), (2), (3), and (4), the Commission shall designate the order of presentation, and any third party shall follow the party on whose behalf his or her participation in the proceedings was sought, and where the third party participation is not in support of an original party, the Commission shall designate the stage at which the third party shall be heard.

(6)                       The Commission shall determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties, and may require that the cases be presented within those periods.

(7)                    A record of hearing shall close when the recording of testimonies by the Commission is concluded.

23.       Proposed findings and conclusions

(1)      Each party to the proceedings may file proposed findings of fact and conclusions, briefs, or memoranda of law, at least twenty days after a record is closed, except where additional time is allowed by the Commission.

(2)                    In the absence of a good cause, failure to file proposed findings of fact, conclusions, briefs, or memoranda of law, when directed to do so, may be considered as a waiver of the right to participate further, in the proceedings.

(3)                      Proposed findings of fact shall be specified in serially numbered paragraphs and shall set out in detail and with particularity all basic evidentiary facts developed on the record.

(4)                    Each evidentiary fact shall have the appropriate citations to the transcript of record or exhibit relied on, to support the conclusions proposed by the party filing them.

(5)                     The proposed conclusions shall be stated separately and the proposed findings of fact and conclusions submitted by any person other than the complainant may be limited to those issues in connection with the hearing which affect the interests of that person.

24.       Certification of transcript

(1)    After the close of the hearing, the complete transcript of testimonies, together with all exhibits shall be certified by the Commission, and filed in the office of the Secretary to the Commission.

(2)                   The Secretary to the Commission shall serve notice of the certification on all parties to the proceedings.

(3)                    At any time during the course of the proceeding, or as may be directed by the Commission, but not later than ten days after the date of notice of certification of the transcript, a party to the proceeding may file with the Commission an application, accompanied by proof of service upon all the other parties to the proceeding, requesting the correction of the transcript.

(4)                      Within five days after the filing of an application requesting the correction of the transcript, any other party may file a pleading in support of or in opposition to the application.

(5)                     The Commission shall after filing an application by order, specify the corrections to be made in the transcript.

(6)                   A copy of the order shall be served upon all parties and shall become part of the record.

(7)                    The Commission may on its own initiative specify corrections to be made in a transcript upon giving the parties a five days notice.

25.       Final decision

(1)    After opportunity is afforded for the filing of proposed findings of fact and conclusions, the Commission shall issue a final decision.

(2)                   The final decision shall contain—

(a)                    findings of fact and conclusions, and the reasons and the basis of these,

upon all the material issues of fact, law or discretion presented on the record;

(b)                   rulings on each relevant and material exception filed; and

(c)                   the appropriate rule or order and the sanction, relief or denial of such rule

or order.