Appeals to the Social Security Tribunal General Division (8:XIV)
A. Appeal Docket
The Commission receives and reviews the appeal letter and, unless convinced to reverse its decision by the information contained in it, will set the place and date of appeal and send the claimant and the employer an “Appeal Docket”. The docket contains all documents from the Commission’s file regarding the claim that it considers relevant to the issue. The docket is given to the claimant, the General Division, and to the employer if the employer asks to participate.
The docket should be carefully reviewed, as the appeal must meet the Commission’s argument and evidence. The docket includes the “Representations of the Commission to the General Division”, which is basically the Commission’s written argument supporting its decision. Otherwise, the Commission usually does not appear at the hearing.
- NOTE: All adverse decisions should be listed under item no. 2 of the appeal form. There have been cases where claimants who claimed they were appealing a letter of overpayment without mentioning the penalty imposed in a different letter were told at the hearing that the Referees have no jurisdiction over the penalty by reason of this omission.
B. Preparation for Appeal to the General Division
When reviewing the docket and preparing for the appeal, the claimant and their representative should consider the:
- “Representations of the Commission to the General Division” (this is the Commission’s justification for its decision);
- evidence relied upon by the Commission; and
- Umpire decisions or now SST Appeal Division decisions cited by the Commission.
The docket contains most of the relevant documents and also summarizes all statements made by the claimant to the Commission, as well as the Insurance Officer’s decision and comments. Read the docket carefully and be prepared to comment on it.
In many cases, the claimant may have to explain that the statement does not accurately reflect what they really intended to say. For example, the claimant did not mean to say that they would only work for $12.50 per hour and no less. Rather, the claimant meant that they would prefer $12.50 per hour, but would work for the going rate. The claimant will have to overcome the SST’s inclination to believe what the claimant said in their statement as opposed to what is being said now, after disentitlement. The claimant must convince the SST of his or her honesty.
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 Canlii or the Social Security Tribunal Website at https://www1.canada.ca/en/sst/ad/index.html. 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 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 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
1. Claimant’s Preparation
The claimant should be neat in appearance, be prepared to submit a job search if relevant, and be prepared to present the facts of his or her situation. The claimant should also be prepared to answer questions directly and clearly.
In cases where credibility is crucial, claimants may consider preparing a sworn affidavit or statutory declaration of the evidence if the facts are in dispute, since sworn evidence carries greater weight. The affidavit or declaration can also form a useful “record” of the claimant’s case and is especially useful in cases where there are contradictory statements.
2. Representative’s Preparation
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;
- b) spend some time before the hearing with the claimant reviewing facts, explaining legal arguments and anticipating questions;
- c) meet with witnesses, explain Tribunal procedure, and review with them the questions that will be asked of them at the hearing;
- d) prepare a written list of points to be made in the claimant’s favour. This is to ensure that if and when “sidetracked” by the General Division, none of the points will be forgotten. It will also be helpful in “making a record” to give to the General Division, ; and
- e) prepare a written submission summarizing the main points of evidence and arguments. This fills in the gaps in the oral arguments, and becomes part of the “record” for later appeals to the Appeal Division or the Federal Court.
3. Procedure at the Hearing
The General Division generally takes a “common sense” approach 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 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.
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, 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.
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 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.
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