Difference between revisions of "Appeals to the Social Security Tribunal General Division (8:XIV)"

The General Division generally takes a “common sense” rather than a highly legal approach to the proceedings, and is usually interested  primarily in the evidence. The claimant’s appearance, attitude, and presentation of facts are all important. An hour spent familiarizing the claimant with procedure and preparing him or her for the types of questions the General Division will ask is usually more valuable than an hour spent mulling over the nuances of the EI Act. That said, the Tribunal will not allow an appeal if they do not believe they have the authority to do so, whatever sympathy they may have for the worker.

Rules of evidence generally do not apply to General Division hearings. An objection on a “technicality”   may   upset   the   General   Division   and  jeopardize   the claimant’ s  success. However, the General Division will agree that the hearingis  only to decide the questions placed before it and may accept an objection that a question is irrelevant to the issue before the Tribunal. Often decision-makers find that the evidence of a claimant that appears before them is entitled to more weight than the hearsay statement of the employer toanEI agent ina telephone conversation.

The claimant can ask to have the hearing taped. In the absence of such a request, the General Division will use its discretion asto  whether to record the hearing or not. In most cases, the hearing will be taped. Itisstrongly  advised that every claimant request that the hearing be  taped, as this provides a record of the evidence, and also shows whether the General Division gave a fair hearing.  

4.Evidence at the Hearing  

a)Claimant’s Evidence  

The claimant should then be asked to tell the General Division his or her version of the relevant facts. The advocate may ask leading questions (requiring a simple “yes”or“no”  answer) for all matters not really in dispute, or relate the non-controversial facts directly to the General  Division members. However, itisimportant to let claimants tell crucial facts in their own words.At any point, the General Division itself  may ask questions of the claimant or witnesses, or may query parts of the legal argument that it does not understand. A well-prepared claimant  can   make   a   good   impression if   answers   are   given in   a   clear, straightforward manner. The claimant should be sure to make eye contact with the General Division members when addressing them.Ryan v Attorney General of Canada,  2005  FCA  320 is  a  useful  case  because  the  court reconsidered  the  weight of  some  claimant  evidence.  The  court  contradicted  the general  line  of  reasoning  that  evidence  given by  a  claimant in  response to  the Commission’ s accusations is inherently less believable.  

b)Submissions: Disputing the Commission’s Case