Appeals to the Social Security Tribunal General Division (8:XIV): Difference between revisions
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Appeals to the Social Security Tribunal General Division (8:XIV) (view source)
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=== 3. Procedure at the Hearing === | === 3. Procedure at the Hearing === | ||
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. | 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” | 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. | ||
The | The claimant can ask to have the hearing taped. In the absence of such a request, the General Division will use its discretion as to whether to record the hearing or not. In most cases, the hearing will be taped. It is strongly 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 | === 4. Evidence at the Hearing === | ||
a)Claimant’s Evidence | ==== a) Claimant’s Evidence ==== | ||
The claimant | 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, it is important 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. | ||
b)Submissions: Disputing the Commission’s Case | ''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 ==== | |||
Following the presentation of documents, the claimant’s evidence, and any other witnesses, the representative should summarise 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. |