Social Security Tribunal Overview (8:XIII)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 24, 2021.

If the claimant is unhappy with the decision following the Reconsideration, the claimant may file an appeal to the SST. General information about the Tribunal appeal process can be found at: http://www.canada.ca/en/sst/index.html

A comprehensive guide to appeals to the General Division and Appeals Division called “Challenging A Decision About Your Employment Insurance Claim: Reconsideration and the Social Security Tribunal” can be found on the Community Legal Assistance Society website at: http://www.clasbc.net/self_help_guides.

A. General Division

The SST must receive a claimant’s appeal within 30 days of the claimant’s becoming aware (including being told in a phone call) of the Reconsideration decision. There are two ways to file an appeal:

Fill out the Notice of Appeal to the SST General Division – EI form and e-mail, mail or fax it to the SST. The form can be filled out on the computer and then printed or printed and filled out by hand. This form is accessible at the following link: https://www1.canada.ca/en/sst/forms/noa-gd-ei-en-v2.pdf. If the claimant is unable to print the form, the claimant may contact the SST and the Tribunal will send the form to the claimant.
Write the SST a letter of appeal containing all the information required in the form. If the claimant fails to provide all of the information required, the appeal may not be accepted.

Upon receiving an incomplete appeal, the Tribunal will send a letter to the applicant asking them to file all missing information within 30 days of the date of the letter. If the applicant does this, the Tribunal will consider the appeal to have been filed the date of the original incomplete application for the purposes of meeting the deadline to file an appeal.

Once the SST receives a completed notice of appeal, it will notify Service Canada of your appeal.

If a claimant submits an appeal form after the 30 days, the claimant can request an extension in the form. However, the decision is ultimately up to the Tribunal’s discretion as to whether to grant the extension.

When a Notice of Appeal is received, a Tribunal Member will be assigned to the claimant’s file. The Member will review the file and will dismiss any file which the Member decides has no reasonable chance of success. The SST will notify the claimant if they are considering summarily dismissing an appeal, and provide the claimant with an opportunity to make additional submissions before the appeal is dismissed.

If the appeal is proceeded with, there are several types of hearings available:

Written: The Member will ask the claimant questions and request a written response by a certain date
Telephone
Videoconference
In-Person

The Member will choose the type of hearing to be used. The Tribunal will telephone or write to the claimant to arrange the hearing.

Following the hearing, the Member will send the claimant a copy of the decision.

1. Discretionary Decisions

Discretionary decisions such as the Commission’s refusal to extend time, or its decision regarding the length of disqualification, can only be reversed if it is decided that the original decision:

a) ignored or failed to consider a relevant factor, including something the Commission was unaware of, such as health problems or other mitigation;
b) acted on an irrelevant factor;
c) committed a jurisdictional error; or
d) acted against the principles of natural justice, such as acting with bias or bad faith.

The issue is whether the Commission’s exercise of discretion in the original decision was reasonable. However, where the Commission has failed to consider relevant evidence, or where there is new evidence presented for the first time by the claimant, the reviewer can exercise remedial authority by making the decision that should have been made. It is rarely difficult in a deserving case to show that the Commission has disregarded some relevant fact.

2. Amount of Penalty

Courts have also determined that the amount of a penalty for making false statements may also be appealed only to the extent that in coming up with the amount of penalty, the Commission committed an error, such that the decision or the decision making process was unreasonable. That said, as above, one can often find some relevant “fact” that the Commission failed to consider.

Keep in mind that the decision to apply a penalty can always be appealed.

B. Re-opening a Decision

A claimant can apply to the Commission or the SST to rescind or amend a decision if there are new facts or the decision was made without knowledge of, or was based on a mistake as to, some material fact. This application can only be made once and must be submitted within one year of the decision. For more information, use the following link: http://www1.canada.ca/en/sst/ap/eigd-rescind-amend.html.

C. Appeal Division

The Appeal Division of the SST must receive a claimant’s appeal within 30 days of the claimant’s receipt of the General Division’s decision. There are two ways to file an appeal:

Fill out the Application to the Appeal Division – Employment Insurance form and mail or fax it to the SST. The form can be filled out on the computer and then printed or printed and filled out by hand. This form is accessible at the following link: https://www1.canada.ca/en/sst/forms/lta-ad-ei-en-v1.pdf. If the claimant is unable to print the form, the claimant may contact the SST and the Tribunal will send the form to the claimant.
Write the SST a letter of appeal containing all the information required in the form. It is important to ensure that all the required information is included.

If a claimant submits an appeal form after the 30 days, the claimant can request an extension in the form. However, the decision is ultimately up to the Tribunal’s discretion as to whether or not to grant the extension. When a Notice of Appeal is received, a Tribunal Member will be assigned to the claimant’s file to decide whether or not to grant permission to allow the appeal to proceed. The grounds for appeal to the Appeal Division are:

The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction
The General Division erred in law in making its decision
The General Division based its decision on an erroneous finding of fact that was made in a perverse or capricious manner or without regard for the evidence before it

A claimant will be informed in writing if their application for permission to appeal is dismissed. Permission is not required when appealing a General Division decision to summarily dismiss the appeal.

If permission is granted for the appeal, the parties have 45 days to provide submissions. If no submissions are received, the Member will decide whether to allow the appeal to proceed based on the documents or submissions on file.

In some cases the Appeal Division will decide solely on the basis of the written record and submissions, and the Member will decide if a hearing is necessary. The hearing process used is the same as the General Division.

Following the hearing, the Member will send the claimant a copy of the decision. The decisions of the Appeal Division are subject to review under the Federal Courts Act.