SYNOPTIC TABLES

Institutional

• not removable for the duration of its term, except in the event of revocation for cause.
• financial security (Treasury Board).
• functional autonomy (in relation to the Commission).

Individual

• no external pressure on the decision makers.
• deliberations are secret.

Institutional

• no functional relations with the Commission except the clerk.
• may act as representative in other cases before other boards.

Individual

• no conflicts of interest.
• not to have dealt before with the case or the file.
• impartial behaviour at the hearing.
• no communication with one of the parties in the absence of the other.

BURDEN

• Appellant.
• Shared between the appellant, the Commission or the employer.
• The Commission: shift of the burden in a number of cases.

STANDARD

• Balance of probabilities or preponderance of the evidence.

MEANS OF PROOF

• Testimonies.
• Written documents (various documents, affidavit).
• Material evidence (objects, photos, recordings).
• Presumptions (legal or factual).
• Admissions or confessions.
• Judicial notice (matters of common knowledge, personal knowledge of the board members, experience, etc.).

TYPES OF EVIDENCE

• Direct (direct link between the means and what has to be proved).
• Indirect or secondary (inference)
  • hearsay
  • circumstantial evidence
  • similar facts.

TYPES OF EVIDENCE
(definitions) 

Direct

• The means employed (testimonies, written documents, admissions, etc.) is closely and directly related to the proof that is sought.

Indirect

• The proof that is sought is inferred from the means employed (testimonies, written documents, objects, etc.).

Hearsay

• What a person reports orally or in writing after having heard it said or read it.

Circumstantial evidence

• On the basis of indications of time, place and persons, the existence of a fact or the occurrence of an event is inferred.

Similar facts

• Proof of facts or situations that are comparable to the fact in dispute.

Documentary evidence

• Any document or writing.
• An authentic deed or official public document.
• A writing in the form of an instrument, which relates a legal act (contract, testament, etc.).
• Affidavit: a sworn statement.
• Other document: any other writing, report or letter.

Testimonial evidence

• A statement by which a person relates the facts of which he or she has knowledge, or by which an expert gives his or her opinion.

Admission

• Recognition, by written or oral testimony, of a fact that can have legal consequences for the person responsible for the fact.

Presumption

• Relevant facts that make it possible to infer the existence of the fact in issue through inductive reasoning.
• Presumption of law: created by statute or a common law rule.
• Presumption of fact: inference made from one or more known facts to an unknown fact.
• Absolute presumption: one that is irrefutable, that cannot be rejected.
• Simple presumption: one that can be refuted by evidence to the contrary.

Natural evidence

• Evidence that a member of a Board of Referees perceives through his or her own senses or through a document or witness (noting of the condition of a thing, listening to a recording).

Judicial knowledge

• The personal knowledge that a member of a board has of well-known and indisputable facts, personal experience and expertise.

Admissible evidence

• Evidence that may be admitted under law.

Relevant evidence

• Evidence that relates directly or indirectly to the subject of the dispute, and that can establish or render probable the existence or non-existence of the facts that must be proved.

Probative value

• The weight that the board gives to a piece of evidence intended to convince the board.

APPELLANT
(claimant)

• Special benefits.
• Antedating.
• Refusal of employment: unsuitable employment or just cause.
• Absence from Canada (R. 55 Employment Insurance Regulations).
• Undeclared earnings (R. 15 Employment Insurance Regulations).
• Week of unemployment (A. 9-11 Employment Insurance Act; R. 29-32 Employment Insurance Regulations).
• Availability (A. 18 Employment Insurance Act).
• Existence of illness or injury.
• Declaration that is false on the face of it, reversal of the burden of proof.
• Application for review = new facts.

SHARED BURDEN
(claimant and Commission)

• Regular benefits: claimant (A. 49 Employment Insurance Act), Commission (A. 9 Employment Insurance Act).
• Labour disputes (A. 49 Employment Insurance Act, A. 36 Employment Insurance Act (4)).
• Penalties.
• Availability for work.
• Voluntary separation.
• Earnings.

COMMISSION
(and employer)

• Dismissal for misconduct.

PROBATIVE VALUE 

WRITTEN DOCUMENTS 

Authentic deed and public document

• Provides proof of its contents.

Private act

• Act in the form of an instrument (contract): filing with testimony to support it.
• Other documents: filing with testimony to support it.

TESTIMONIALS

Direct witnesses

• Examination and cross-examination.

Indirect witnesses

• Circumstantial evidence.
• Proof of similar facts.
• Hearsay.

PRESUMPTIONS

Presumption of law

• Absolute value.

Presumption of fact

• Relative value: may be refuted by ordinary evidence.

MATERIAL EVIDENCE

• Production of an object, photograph or recording.

JUDICIAL NOTICE

• Matters of common knowledge.
• Personal experience of the decision maker.

LEGISLATIVE RULES
(Federal Interpretation Act)

• The law is always speaking (s. 10).
• The law has a remedial effect (s. 12).
• Can = power; must = duty.
• The masculine may apply to persons of both sexes.
• The singular may include the plural.
• Divergences between the English and French texts; search the intent of the legislator.

JURISPRUDENTIAL RULES 

• Grammatical or literal method: ordinary meaning of words or phrases.
• Systematic and logical method: search for internal consistency or consistency among various statutes or regulations.
• Teleological method, or method by ultimate purpose (search for the intention of the legislator).

STRUCTURE

• In writing.
• Facts taken into consideration.
• Evidence accepted.
• Testimonies, documents, presumptions, admissions.
• Evidence to the contrary: credibility.
• Findings:
  • findings of law.
  • findings of fact.
• Terms of the decision.

REASONS
(mandatory, sufficient, complete, intelligible)

• Essential facts.
• Based on all the evidence.
• Sufficient:
  • Analysis of the relationship between the evidence and the findings.
• Complete:
  • All the essential facts.
  • Specific relevant criteria according to the Act and Regulations.
  • Questions of credibility.
• Intelligible:
  • No contradiction in the statement of the reasons.
  • The reason for the findings.