The powers of a Board of Referees are not set out in the legislation. However, in providing for appeals to a Board, Parliament must have "intended to confer an effective right of appeal and implicitly to have authorized the Board to give any decision that in the circumstances of the case before it is necessary to ensure that the result is in accordance with the law."
Canada (A.G.) v. Von Findenigg, [1984] 1 F.C. 65 (F.C.A.) A-737-82
However, a Board of Referees must deal with the decision which the Commission in fact made, not one which the Board thinks it could or should have made. Accordingly, a party may not raise an issue at the hearing before the Board which is not part of the decision upon which the appeal is based.
Canada (A.G.) v. Von Findenigg, [1984] 1 F.C. 65 (F.C.A.) A-737-82
Hamilton v. Canada (A.G.) [1988], F.C.J. No. 269 (F.C.A.) A-175-87
Canada (A.G.) v. Read, [1994] F.C.J. No. 359 (F.C.A.) A-371-93
Canada (A.G.) v. Lavoie, 2007 FCA 230 A-455-06
A Board of Referees is bound by the law and cannot refuse to apply it even in the name of equity or fairness. The Board does not have authority to accord to claimants redress for damage occasioned to them by misinformation or error on the part of Commission's employees. The remedy for a claimant in this position is an action in damages, which he or she may bring directly in the ordinary courts of law, not through the roundabout way of judicial review.
Granger v. C.E.I.C., [1986] 3 F.C. 70 (F.C.A.) A-684-85; affirmed [1989] 1 S.C.R. 141 (S.C.C.) File No. 19959
Barzan v. Canada (Minister of Employment & Immigration), April 1, 1993, F.C.J. No. 311 (F.C.A.) A-373-92
Canada (A.G.) v. Duffenais [1993], F.C.J. No. 387 (F.C.A.) A-551-92
Canada (A.G.) v. Tjong, October 3, 1996, F.C.J. No. 1345 (F.C.A.) A-672-95
Canada (A.G.) v. Romero, May 14, 1997, F.C.J. No. 613 (F.C.A.) A-815-96
A Board of Referees exercises judicial or at least quasi-judicial powers, in determining matters which are within its jurisdiction. The Chairperson of the Board also exercises these powers in deciding a question which is within his or her jurisdiction.
Bacon v. Canada, October 15, 1985, F.C.J. No. 925 (F.C.T.D.) T-1689-85
Where a Board of Referees is unable to make a final determination because the Commission has not yet exercised a discretionary power conferred upon it by the legislation, the matter should be referred back to the Commission so that it may exercise that power.
Canada (A.G.) v. Von Findenigg, [1984] 1 F.C. 65 (F.C.A.) A-737-82
Canada (A.G.) v. Lavoie, 2007 FCA 230 A-455-06
Boards of Referees and Umpires do not have the discretion to suspend the operation of a penalty imposed by the Commission pending the determination of an appeal against the penalty itself.
Canada (A.G.) v. Petryna, [2002] F.C.J. 44 (F.C.A.) A-773-00
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2009-04-29