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Difference between revisions of "Appeals to the Social Security Tribunal General Division (8:XIV)"
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Appeals to the Social Security Tribunal General Division (8:XIV) (view source)
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Under the ''Privacy Act'', R.S, 1985, c. P-21 a claimant has a right to access the entire claim file, whether there is an appeal pending or not. This may include the documents that are not part of the docket because the Commission did not consider them relevant. If details of the Commission’s record may be important to the outcome, the advocate should ask for full disclosure of all relevant files. | Under the ''Privacy Act'', R.S, 1985, c. P-21 a claimant has a right to access the entire claim file, whether there is an appeal pending or not. This may include the documents that are not part of the docket because the Commission did not consider them relevant. If details of the Commission’s record may be important to the outcome, the advocate should ask for full disclosure of all relevant files. | ||
The jurisprudence on EI includes more than 80,000 decisions of the Umpire, along with perhaps a thousand or so decisions of the Federal Court of Appeal and the Supreme Court of Canada. Most of these decisions can be found (and searched by key words) on the | The jurisprudence on EI includes more than 80,000 decisions of the Umpire, along with perhaps a thousand or so decisions of the Federal Court of Appeal and the Supreme Court of Canada. Most of these decisions can be found (and searched by key words) on the Commission’s jurisprudence web site at: www.ei-ae.gc.ca/en/library/search.shtml. A claimant or representative should always read the cases upon which the Commission is relying. Often the quoted excerpt is taken out of context, and the facts are so different that the case can be easily distinguished, or even used to support the appeal. | ||
Any exhibits, cases, or written arguments should be submitted to the General Division ahead of the hearing date, if possible. This will give | Any exhibits, cases, or written arguments should be submitted to the General Division ahead of the hearing date, if possible. This will give the Tribunal a chance to familiarize themselves with the materials, and make more efficient use of the hearing. The Tribunal will accept new evidence at the hearing, but may adjourn it if the material is lengthy. | ||
Service Canada’s | Service Canada’s EI website contains links to the legislation, the jurisprudence library an index of jurisprudence, as well as the General and Appeal division website. The website is available at: http://www.servicecanada.gc.ca/eng/sc/ei/index.shtml. | ||
== C. Hearings Before the General Division == | == C. Hearings Before the General Division == | ||
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The representative should also be neatly dressed, which in the case of LSLAP clinicians means courtroom clothing. The representative should: | The representative should also be neatly dressed, which in the case of LSLAP clinicians means courtroom clothing. The representative should: | ||
*a) prepare a legal basis to allow the appeal, using the ''EI Act'', ''EI Regulations'', Digest, and jurisprudence; | *a) prepare a legal basis to allow the appeal, using the ''EI Act'', ''EI Regulations'', Digest, and jurisprudence; | ||
*b) spend some time before the hearing with the claimant reviewing facts, explaining legal arguments and anticipating questions; | *b) spend some time before the hearing with the claimant reviewing facts, explaining legal arguments and anticipating questions; | ||
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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 hearing is 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 to an EI agent in a telephone conversation. | 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 hearing is 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 to an EI agent in a telephone conversation. | ||
In most cases, the hearing will be taped. In the absence of a request to not tape the hearing, the General Division will typically have the hearing taped. The claimant may request to have the hearing taped if the General Division chooses not to. It is strongly advised that every claimant ensure that the hearing be taped, as this provides a record of the evidence, and also shows whether the General Division gave a fair hearing. | In most cases, the hearing will be taped. In the absence of a request to not tape the hearing, the General Division will typically have the hearing taped. The claimant may request to have the hearing taped if the General Division chooses not to. It is '''strongly advised''' that every claimant ensure 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 === | === 4. Evidence at the Hearing === | ||
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==== b) Submissions: Disputing the Commission’s Case ==== | ==== b) Submissions: Disputing the Commission’s Case ==== | ||
Following the presentation of documents, the claimant’s evidence, and any other witnesses, the representative should | Following the presentation of documents, the claimant’s evidence, and any other witnesses, the representative should summarize the facts and evidence in the client’s favour and make legal arguments if applicable. The representative should point out fallacies in the Commission’s argument and distinguish the cases relied upon by the Commission. | ||
==== c) Payment of Benefit Pending Appeal: Not Recoverable ==== | |||
Benefits are not payable in accordance with a decision of the General Division SST if, within 21 days after the day on which a decision is given, the Commission makes an application for leave to appeal to the Appeal division on the ground that the General Division has erred in law, according to s 80 of the EI Regulations. If benefits are paid to the claimant and the Appeal Division allows the Commission’s appeal, the benefits cannot be recovered. In practice, however, when the Commission appeals it always alleges an error of law, and files within 21 days. This avoids the need to pay benefits while the appeal is pending. | |||
{{LSLAP Manual Navbox|type=chapters8-14}} | {{LSLAP Manual Navbox|type=chapters8-14}} | ||
