Appeal to Umpire

I. The Legislation

Section 115 of the Employment Insurance Act provide that the Commission, a claimant or employer, or their respective associations may appeal a decision of the Board of Referees to an Umpire as of right. A Board's decision may be appealed on three grounds:

  1. the Board failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
  2. the Board erred in law in making its decision; or
  3. the Board based its decision on an erroneous finding of fact which it made in a perverse or capricious manner or without regard for the material before it.

Section 115 Employment Insurance Act   Employment Insurance Act

An appeal to an Umpire must be brought within sixty (60) days after the day the Board of Referee's decision is communicated to the person wishing to appeal. The Umpire may, for "special reasons", allow an appeal to be brought outside the sixty day time period.

Section 116 Employment Insurance Act   Employment Insurance Act

II. Powers of Umpire

An Umpire has the power to decide any question of fact or law that is necessary and to determine the appeal and can dismiss the appeal; give the decision the Board should have given; refer the matter back to the Board for rehearing and redetermination in accordance with any directions given by the Umpire; or confirm, rescind or vary the decision of the Board in whole or in part.

Section 117 Employment Insurance Act   Employment Insurance Act

An Umpire does have jurisdiction to find provisions of the Act and Regulations to be inconsistent with the Charter.

Tetreault-Gadoury v. C.E.I.C., [1991] 2 S.C.R.   Judgement Of The Supreme Court Of Canada 22 (S.C.C.) File no. 21222 A-760-86   Judgment Of The Federal Court Of Appeal
Nishri v. Canada, A-216-96, December 9, 1997 (F.C.A.)   Judgment Of The Federal Court Of Appeal

Where a claimant or other party involved in an appeal before an Umpire wishes to rely upon the Charter to attack the constitutional validity of a section or sections of the legislation, that party is required to provide notice to the Attorney General of Canada and the Attorney Generals of the Provinces, at least ten (10) days prior to a hearing before the Umpire. In accordance with Rule 301.1 of the Federal Court Rules, notice of a constitutional question under section 57 of the Federal Court Act is to be substantially the same form as Form 2.1 set out in the Appendix of the Act.

Section 57 Federal Court Act
Federal Court Act
Attorney Generals Mailing List

Rule 69 Federal Court Rules   Federal Court Rules
Form 69Appendix to  Federal Court Act   Federal Court Act

An Umpire is 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 provide relief to 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 which he or she may bring 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, F.C.J. No. 613, 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., [1989] 1 S.C.R. 141 (S.C.C.) File no. 19959   Judgement Of The Supreme Court Of Canada; affirming [1986] 3 F.C. 70 (F.C.A.) A-684-85 Judgment Of The Federal Court Of Appeal
Calder v. Minister of Employment and Immigration, [1980] 1 F.C. 842 (F.C.A.) A-233-79 Judgment Of The Federal Court Of Appeal

Boards of Referees and Umpires may not 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.A. 44 A-773-00 Judgment Of The Federal Court Of Appeal

III. Grounds of Appeal

A Board of Referee's decision may only be overturned on one of the three grounds of appeal set out in the Act. Furthermore, an Umpire may not rule on a matter which is not properly before him or her.

Frew v. Canada (A.G.), A-693-93, June 23, 1994 (F.C.A.)   Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Taylor (1991), 126 N.R. 345 (F.C.A.) A-681-90 Judgment Of The Federal Court Of Appeal
U.I.C. v. Howley A-1261-83 (1984), 54 N.R. 317 (F.C.A.)   Judgment Of The Federal Court Of Appeal

Natural justice requires that a Board of Referees 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 (Board of Commissioners of Public Utilities)(1992), 89 D.L.R. (4th) 289 (S.C.C.)   Judgement Of The Supreme Court Of Canada

Once an Umpire concludes that a claimant has not been given the right to a fair hearing, that is, has not been accorded procedural fairness, the matter should be sent back to the Board of Referees. The Umpire should not rule on the merit of any arguments being advanced in the appeal. Any comments which an Umpire makes in this regard can in no way be binding on the Board of Referees at the new hearing.

Canada (A.G.) v. Baillargeon, A-219-93, May 4, 1994 (F.C.A.)   Judgment Of The Federal Court Of Appeal

Whether the facts, once established, satisfy some legal definition or requirement is a question of law and the issue then is how to interpret and apply the law to those established facts.

Wade, Administrative Law, 4th ed., (1977), p. 775

Where a Board of Referees is alleged to have erred in law, the question of whether there was evidence upon which it could come to the conclusion it did is not relevant. The Umpire is entitled in cases of that nature to give the decision that the Board should have given.

Canada (A.G.) v. Tucker, [1986] 2 F.C. 329 (F.C.A.) A-381-85 Judgment Of The Federal Court Of Appeal

Where a decision of a Board of Referees is challenged because it was based on erroneous findings of fact, the Umpire's review is limited to considering and determining whether the view of the facts taken by the Board was reasonably open to it based on the evidence before it. This is so even if the Umpire might have reached a different conclusion. An Umpire is not entitled to reach a different conclusion of fact than that reached by the Board unless the Board made findings of fact in a perverse or capricious manner or without regard to the material before it. If there are facts to support the Board's conclusion and its finding is one that was reasonably open to it based on the evidence before it, an Umpire is not entitled to substitute his or her own view of the facts for those of the Board.

Lambert v. C.E.I.C., A-169-98, September 24, 1999 (F.C.A.)   Judgment Of The Federal Court Of Appeal
Belanger v. C.E.I.C., A-839-97, June 12, 1998 (F.C.A.)   Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Freeman, A-480-94, May 9, 1995 (F.C.A.)   Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Feere, A-87-94, January 23, 1995 (F.C.A.)   Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Maughan (1994), 164 N.R. 237 (F.C.A.) A-1463-92 Judgment Of The Federal Court Of Appeal
The Queen v. Dietrich, A-640-93, December 13, 1994 (F.C.A.)   Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. McCarthy, A-600-93, August 5, 1994 (F.C.A.)   Judgment Of The Federal Court Of Appeal
Overall v. Canada (A.G.), A-809-87, June 14, 1988 (F.C.A.)   Judgment Of The Federal Court Of Appeal
Champagne v. C.E.I.C., A-707-86, June 9, 1987 (F.C.A.)   Judgment Of The Federal Court Of Appeal
C.E.I.C. v. Chapdelaine (1986), 72 N.R. 1 (F.C.A.) A-1203-84 Judgment Of The Federal Court Of Appeal
Roberts v. C.E.I.C. (1985), 60 N.R. 349 (F.C.A.) A-595-84 Judgment Of The Federal Court Of Appeal
Dubois v. C.E.I.C. (1984), 61 N.R. 230 (F.C.A.) A-548-83 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Cole, [1983] 1 F.C. 425 (F.C.A.) A-20-82 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Wilson, A-533-84, September 19, 1984 (F.C.A.)   Judgment Of The Federal Court Of Appeal

Even if the findings of fact on which the Board based its decision appear questionable, it does not necessarily follow that they are erroneous, perverse or capricious.

Canada (A.G.) v. Verreault (1986), 86 N.R. 389 (F.C.A.) A-186-86 Judgment Of The Federal Court Of Appeal

The fact that other Boards may have reached a different conclusion does not mean that the Board's decision was perverse or capricious.

Canada (A.G.) v. Cole, [1983] 1 F.C. 425 (F.C.A.) A-20-82 Judgment Of The Federal Court Of Appeal

IV. Role of the Umpire

The role of the Umpire is to review the decision of the Board of Referees. The Act does give the Umpire, among other possibilities, the option of giving the decision that the Board should have given, but his or her powers to intervene as defined in the legislation are strictly the powers of a reviewing body.

Dunham v. Canada (A.G.), A-708-95, September 27, 1996 (F.C.A.)   Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. McCarthy, A-600-93, August 5, 1994 (F.C.A.)   Judgment Of The Federal Court Of Appeal
Taylor v. Minister of Employment and Immigration (1991), 126 N.R. 345 (F.C.A.) A-681-90 Judgment Of The Federal Court Of Appeal
Roberts v. C.E.I.C. (1985), 60 N.R. 349 (F.C.A.) A-595-84 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Cole, [1983] 1 F.C. 425 (F.C.A.) A-20-82 Judgment Of The Federal Court Of Appeal

It is not the role of an Umpire to make findings of credibility. An appeal to an Umpire is not a de novo proceeding where claimants are entitled to testify on their own behalf.

Canada (A.G.) v. Childs, A-418-97, May 26, 1998 (F.C.A.)   Judgment Of The Federal Court Of Appeal

An Umpire may only consider those questions and issues which were raised before the Board of Referees.

Canada (A.G.) v. Girard, A-6-97, September 18, 1997 (F.C.A.)   Judgment Of The Federal Court Of Appeal
Hamilton v. Canada (A.G) (1988), 91 N.R. 145 (F.C.A.) A-175-87 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 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

V. Review of Umpire's Decision

An Umpire's decision is final and not subject to appeal or review by any Court except in accordance with the Federal Court Act.

Section 118 Employment Insurance Act
Employment Insurance Act
Section 28 Federal Court Act   Federal Court Act

The powers of the Federal Court of Appeal under section 28 of the Federal Court Act are limited to overseeing and controlling the legality of decisions of administrative bodies, and to referring matters back to those bodies for re-determination, with directions where appropriate. The Federal Court of Appeal may decide a jurisdictional question, but it may not make a final determination on the question to be addressed.

Williams v. Canada (A.G.), A-761-90, March 27, 1992 (F.C.A.)   Judgment Of The Federal Court Of Appeal
Keagan v. Canada (A.G.), A-762-90, March 27, 1992 (F.C.A.)   Judgment Of The Federal Court Of Appeal
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

The Federal Court of Appeal may interfere with an Umpire's finding of fact only if they are erroneous findings made in a perverse or capricious manner, or without regard to the material before the Umpire.

Canada (A.G.) v. Norman, [2002] F.C.J. No. 1530 (F.C.A.) A-500-01 Judgment Of The Federal Court Of Appeal

VI. Related Topics