Recording Policy for Boards of Referees
1. Policy Objective
The purpose of recording Board of Referees hearings is to have a reviewable record of the proceedings in the event that a further appeal is lodged to the Umpire by the claimant or any of the interested parties to the appeal.
Moreover, Umpires may require a transcript of the recording of the proceedings before the Board of Referees in situations where there have been allegations that the Board of Referees failed or refused to respect the principles of natural justice e.g. did not conduct a fair hearing.
In all situations, it is at the discretion of the Chair, who pursuant to Section 80(7) of the Employment Insurance Regulationsis authorized to determine the procedure at a hearing before the Board, whether or not to allow recording. It is anticipated that the appellant's wishes would normally be respected.
2. Legislative and Regulatory Provisions
The Act does not stipulate that the audio recording must be made of hearings before E.I. Boards of Referees, except where oral testimony concerning an allegation of harassment is given in the absence of the claimant or the employer, excluded from the hearing by order of the chairperson of the Board (Section 29(c)(i) Employment Insurance Actand Section 81 Employment Insurance Regulations).
All other hearings held before Boards of Referees are recorded at the discretion of the chairperson of the Board. When there is an objection raised by any of the parties to having the hearing recorded, the Chairperson has the sole authority to determine how the hearing proceeds (Section 80(7) Employment Insurance Regulations).
3. Roles and Responsibilities
Under the direction of the Assistant Deputy Minister - Operations Branch, the Director General of Policy, Appeals and Quality is responsible for providing functional guidance for the application of this policy.
The Director, Appeals is mandated with the responsibility of developing and maintaining the processes, tools and procedures required to apply the recording policy as it relates to appeal hearings before E.I. Boards of Referees.
The Regional Executive Head and Managers of Insurance for each Region are responsible for ensuring implementation of the recording policy for Board of Referees hearings in their regions, and for verifying that the policy is consistently applied in the Service Canada Centres.
Service Canada Centres
In all regions, Service Canada Centre/Board Centre managers are responsible for implementing the Board of Referees recording policy and ensuring that their staff has the knowledge and the equipment to apply the policy.
The Director of each Board Centre or Service Canada Centre is responsible for the safekeeping, security and identification of recordings of Board of Referees hearings.
Board of Referees
The Board of Referees is an independent administrative tribunal, at arms length with the Department. The role of the Board of Referees is to hold hearings and render decisions regarding appeals lodged against decisions of the Commission, on the basis of the facts and the relevant law, and where applicable, record the hearing. The chair of the Board of Referees is authorized to determine the procedure at a hearing before the Board, and to decide whether or not to allow recording.
4. Recording Policy
The policy requires that the proceedings at the Board of Referees hearing are to be recorded only if any one of the following is applicable:
- The appellant has presented a request for recording.
- The Commission or another interested party has presented a request for recording, and the chairperson has approved the request.
- The hearing concerns an allegation of sexual or other harassment..
In all situations, except where the appeals involves an allegation of harassment, where Regulation 81 governs, it is at the discretion of the Chair whether or not to allow recording of the proceedings, although it is anticipated that the appellant's wishes would normally be respected.
To comply with the new policy, the Notice of Hearing to the Board of Referees has been adjusted to inform the appellant /interested parties that recording of the appeal proceedings is optional and will take place if requested by them. If a letter requesting recording is not submitted and the request is made at the hearing, the decision to record the proceedings remains, as before, with the Chair.
5. Objection by One of the Parties to Recording of the Hearing
When there is an objection raised by any of the parties to having the hearing recorded, the Chairperson has the sole authority to determine how the hearing proceeds, pursuant to Subsection 80(7) Employment Insurance Regulations.
The only exception deals with appeals where the issue involves an allegation of harassment. In those cases, the hearing must be recorded pursuant to Regulation 81 Employment Insurance Regulations.
6. Quality of the Recording Equipment
The recording devices and microphones must provide good sound reproduction. Care must be taken by Board Centre' staff prior to the hearing to ensure that the equipment is in good working order, and is turned on during the hearing. The Chairperson must ensure during the hearing that the recording device is turned on and does not stop recording as the hearing proceeds.
Mere lack of a recording does not warrant a rehearing. If, however, the claimant is informed the hearing is being recorded, and subsequently because of technical problems recording did not occur, he or she may be deprived of the opportunity to fully present his or her appeal to the Umpire.
In some cases, technical recording problems (defective recording device, incomplete or poor quality cassette, erased recording, etc.) have prejudiced the preparation of a claimant's appeal to the Umpire. It must be understood that where defective or missing recordings prevent a claimant from fully presenting his or her appeal arguments and breach of a principle of natural justice is alleged, the Umpire usually gives the claimant the benefit of the doubt. Unless Umpires have reason to doubt a claimant's credibility, they will order a rehearing before the Board of Referees based on a failure to observe the principles of natural justice.
7. Requesting a Copy of the Recording
A copy of recording of the hearing before the Board of Referees will be provided in the event a claimant or an interested party to the appeal makes a request, as long as they have participated in the hearing, either in person, by telephone or have made written representations to the Board of Referees. These persons do not have to justify their request or give reasons, and will receive a copy of the recording. However, a transcript of the recording from a Board of Referees hearing will not be provided by the Commission unless expressly requested by the Umpire.
Parties requesting a copy of the recording, who are not considered to be interested parties or who have not participated in the appeal proceedings, will not automatically be provided with a copy. There are Privacy and Access to Information factors which warrant consideration in such instances, and a formal Privacy and Access to Information request must be completed before releasing a copy of the recording.
8. Storage and Retention Period for Recordings
Recordings used in appeals must be placed in a locked filing cabinet. The director of each Board Centre/Service Canada Center is responsible for the safekeeping, security and identification of recordings.
In appeal cases, the retention period for recordings of hearings is five years from the conclusion of the appeal.