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  • Appeal to Board of Referees

    I. The Legislation

    A claimant or a claimant's employer may appeal a decision of the Commission to a Board of Referees. The appeal must be filed within thirty (30) days of communication of that decision to the party who is appealing. The Commission may extend the thirty (30) day time limit if it is satisfied that "special reasons" exist.

    Subsection 114(1) Employment Insurance Act   Employment Insurance Act

    II. Function and Powers of Board of Referees

    A Board of Referees is required to provide a fair hearing to all of the parties in an appeal. The right to a fair hearing includes the right of the claimant to receive reasonable notice of the place and time of the hearing; to know the case to be met, to be present and represented by someone of his or her choice; to submit evidence and fully present his or her case; to hear the submissions of the opposing side and to respond accordingly; and, to have the matter determined by an impartial tribunal.

    Newfoundland Telephone Co. v. Newfoundland (Bd of Commissioners of Public Utilities) (1992), 89 D.L.R. (4th) 289 (S.C.C.) Judgement Of The Supreme Court Of Canada

    A Board of Referees is entitled to conduct its hearings in a variety of ways, including by telephone conference. However, Boards are obliged to conduct their hearings in a manner that accords the parties a fair hearing. In some circumstances that will require a hearing in person. One such circumstance arises when the credibility of the claimant or others is really in issue.

    Canada (A.G.) v. Peterman, A-532-86, April 8, 1987 (F.C.A.)   Judgment Of The Federal Court Of Appeal

    The Board has no jurisdiction to deal with issues arising under the Charter. This jurisdiction is given to the Umpire, to whom an appeal from the Board of Referees may be made.

    Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5 (S.C.C.) File no. 21675   Judgement Of The Supreme Court Of Canada
    Tetreault-Gadoury v. C.E.I.C., [1991] 2 S.C.R. 22 (S.C.C.) File no. 21222   Judgement Of The Supreme Court Of Canada
    Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570 (S.C.C.) File no. 20800   Judgement Of The Supreme Court Of Canada

    A decision of the Commission to approve or not to approve a work-sharing agreement, job creation project or certain types of developmental assistance, may not be appealed to a Board of Referees. In addition, a decision of the Commission to refer or refusing to refer a claimant to a course of instruction or program, may not be appealed to a Board.

    Subsections 24(2) Employment Insurance Act, 25(11) Employment Insurance Act, 26.1(1) Employment Insurance Act and 26(8) Unemployment Insurance Act
    Employment Insurance Act
    Subsections 24(2) Employment Insurance Act and 25(2)Employment Insurance Act   Employment Insurance Act

    Boards of Referees and Umpires may not suspend the operation of a penalty imposed by the Commission pending determination of an appeal against the penalty itself.

    Canada (A.G.) v. Petryna, [2002] F.C.A. 44 A-773-00 Judgment Of The Federal Court Of Appeal

    Boards of Referees are bound by the law and cannot refuse to apply it even in the name of equity or fairness. Neither Boards of Referees nor Umpires have the jurisdiction to compensate claimants for damage caused by misinformation or error on the part of Commission employees. The remedy for a claimant in this position is an action in damages in the ordinary courts of law.

    Canada (A.G.) v. Buors, [2002] F.C.J No. 1403 (F.C.A.) A-294-01 Judgment Of The Federal Court Of Appeal
    Canada (A.G.) v. Duffenais, (1993) 154 N.R. 203 (F.C.A.) A-551-92 Judgment Of The Federal Court Of Appeal
    Barzan v. Canada (Minister of Employment and Immigration), A-373-92, April 1, 1993 (F.C.A.)   Judgment Of The Federal Court Of Appeal 
    Canada (A.G.) v. Romero, A-815-96, May 14, 1997 (F.C.A.)   Judgment Of The Federal Court Of Appeal 
    Canada (A.G.) v. Tjong, A-672-95, October 3, 1996 (F.C.A.)   Judgment Of The Federal Court Of Appeal
    Granger v. C.E.I.C., [1986] 3 F.C. 70 (F.C.A.) A-684-85 Judgment Of The Federal Court Of Appeal; affirmed [1989] 1 S.C.R. 141 (S.C.C.) File No. 19959 Judgement Of The Supreme Court Of Canada
    Calder v. Canada (Minister of Employment and Immigration), [1980] 1 F.C. 842 (F.C.A.) A-233-79 Judgment Of The Federal Court Of Appeal

    III. Hearings Before the Board

    The legislation imposes a duty on the Chairperson of the Board to inform interested parties that a hearing will be held before a Board of Referees. The Chairperson determines the procedure at a hearing of the Board, and the Board, must then give each of the interested parties "a reasonable opportunity to make representations concerning any matter before the board." The appellant has a right to be heard and to be treated fairly in accordance with the rules of natural justice.

    Bacon v. Canada, T-1689-85, October 15, 1985 (F.C.T.D.)   Judgment Of The Federal Court Of Appeal

    A Board of Referees, like other administrative tribunals, is not bound by the "strict rules of evidence applicable in criminal or civil courts." Accordingly, a Board may receive and accept hearsay evidence.

    Canada (A.G.) v. Mills (1984), 60 N.R. 4 (F.C.A.) A-1873-83 Judgment Of The Federal Court Of Appeal
    Caron v. Lojen Industrial Cleaning, [2002] F.C.J 912 (F.C.A.) A-468-00 Judgment Of The Federal Court Of Appeal

    The formal rules of evidence developed for the smooth functioning of Courts should not be strictly applied to hearings before the Board of Referees or the Umpire. The principles of natural justice and the legislation itself suggests that submissions by claimants should be accepted very liberally at all levels of the appeal and review process.

    Dubois v. Canada (Employment Insurance Commission), A-728-97, May 29, 1998 (F.C.A.)   Judgment Of The Federal Court Of Appeal

    Where the factual circumstances and legal issues are the same for a number of claimants, a representative appeal may be filed where all parties are in agreement. Claimants cannot insist on proceeding by way of a representative appeal if the Commission or Board of Referees does not consider this desirable. However, where claimants and the Commission are unable to agree, a Board of Referees may decide to consider the matter as a representative appeal and may apply its findings in one case to other cases which are individually before it.

    Lemieux v. C.E.I.C., [1977] 2 F.C. 246 (F.C.T.D.) T-1343-77 Judgment Of The Federal Court Of Appeal

    IV. Decision of Board of Referees

    The legislation provides that the decision of the Board of Referees must be in writing. The appellant and any other party interested in the appeal are to be

    Subsection 114(3)Employment Insurance Act
    Employment Insurance Act
    Subsections 83(3) and (4)Employment Insurance Regulations   Employment Insurance Regulations

    The legislation also provides that the decision of the Board of Referees must include a statement of its findings of fact. A Board's failure to state the findings of fact upon which its decision is based constitutes an error of law.

    Subsection 114(3)Employment Insurance Act   Employment Insurance Act

    Canada (A.G.) v. Sharma, A-1466-84, October 15, 1985 (F.C.A.)   Judgment Of The Federal Court Of Appeal
    Matheodakis v. C.E.I.C., [1981] 2 F.C. 813 (F.C.A.) A-1-81 Judgment Of The Federal Court Of Appeal
    Bouchard v. Canada (Unemployment Insurance Commission Board of Referees) (1977), 23 N.R. 85 (F.C.A.) A-521-77 Judgment Of The Federal Court Of Appeal

    It is imperative for Boards of Referees to address the issues actually presented to them carefully and to explain their findings in coherent and consistent reasoning.

    McDonald v. Canada (A.G.), A-297-97, February 20, 1998 (F.C.A.)   Judgment Of The Federal Court Of Appeal

    When there is an issue of credibility, the Board of Referees, in order to comply with the legislation, must state at least briefly, that it rejects certain evidence on this basis and why. When it fails to do so it errs in law.

    Parks v. Canada (A.G.), A-321-97, June 1, 1998 (F.C.A.)   Judgment Of The Federal Court Of Appeal

    V. Related Topics

    2012-08-08