Board Of Referees Jurisdiction

Subsection 114(1) Employment Insurance Act of the EI Act confers jurisdiction on the Board of Referees to decide appeals made by a claimant, the employer of the claimant or other person who is the subject of a decision of the Commission.

The Commission is responsible for administering the Regulations Employment Insurance Regulations, except for Part IV (Insurable Earnings and Collection of Premiums) and Part VII of the Act (Benefit Repayment), which fall under the mandate of the Minister of National Revenue. The Minister and the Tax Court of Canada handle all disputes in these areas.

1. Does the Board of Referees have the jurisdiction or authority to decide on the issue appealed?

 
Act: Subsection 114(1) Employment Insurance Act
Regulations: Section 79 Employment Insurance Regulations 

Authority of the Board of Referees

• PETRYNA A-773-00 Judgment Of The Federal Court Of Appeal : Boards of Referees and Umpires do not have the discretion to suspend a decision imposed by the Commission pending the determination of an appeal against the decision itself.
  
  
• BACON T-1689-85 Judgment Of The Federal Court Of Appeal : A Board of Referees exercises judicial or at least quasi-judicial powers, in determining matters that are within its jurisdiction. The Chairperson of the Board also exercises these powers in deciding a question which is within his or her jurisdiction.
  
  
• VON FINDENIGG A-737-82 Judgment Of The Federal Court Of Appeal : Where a Board of Referees is unable to make a final determination because the Commission has not yet exercised a discretionary power conferred upon it by the legislation, the matter should be referred back to the Commission so that it may exercise that power.
  
  

Authority of the Board to intervene in decisions where the Commission exercised its discretionary power

• *GILL A-483-09 Judgment Of The Federal Court Of Appeal : The Court concluded that the Commission does have discretion to determine whether or not to issue a notice of violation. A notice of violation is not mandatory or automatic under subsection 7.1(4). The Court also corrected its previous decisions in Geoffroy Judgment Of The Federal Court Of Appeal , Limosi Judgment Of The Federal Court Of Appeal , Piovesan Judgment Of The Federal Court Of Appeal , Kaur Judgment Of The Federal Court Of Appeal and Patry Judgment Of The Federal Court Of Appeal , they should not be followed on this point of law and concludes that the Board of Referees do have the jurisdiction to set aside the notice of violation.
  
  
• LINGAM A-396-04 Judgment Of The Federal Court Of Appeal , JAMIESON A-316-04 Judgment Of The Federal Court Of Appeal , DEEN A-45-03 Judgment Of The Federal Court Of Appeal :
  The discretion to impose a penalty for false and misleading statements rests solely with the Commission. As long as the Commission exercises this discretionary power judicially, which means that it has taken all relevant considerations into account and has not been influenced by any improper ones, then neither the Board nor the Umpire is entitled to interfere.
  
  This applies to the Commission's discretionary authority to impose a definite period of disqualification under subsection 28(1)   Employment Insurance Actas well.
  
  
• SIROIS A-600-95 Judgment Of The Federal Court Of Appeal: A decision by the Commission to refuse to extend the time for appealing to the Board is itself subject to an appeal to the Board. However, unless the Board explains how the Commission failed to exercise its discretion in a non-judicial way under subsection 79(1) of the Act Employment Insurance Regulations [now Subsection 114(1) Employment Insurance Act], the Board cannot substitute its own discretion for that of the Commission.

Board of Referees must apply the provisions of the EI Act, Regulations and Jurisprudence

• LECLERC A-112-00 Judgment Of The Federal Court Of Appeal: Although the facts were not in dispute, the Board of Referees nonetheless allowed the claimant's appeal for reasons of sympathy and equity, ignoring the express provisions of the Act. The Board of Referees cannot ignore the provisions of the Act, which it has a duty to apply.
  
  
• BARZAN A-373-92 Judgment Of The Federal Court Of Appeal, GRANGER  SCC 19959 Supreme Court Of Canada, A-684-85 Judgment Of The Federal Court Of Appeal: A Board of Referees is bound by the law and cannot refuse to apply it even in the name of equity or fairness.
  
  
• ROMERO A-815-96 Judgment Of The Federal Court Of Appeal: The Board does not have authority to accord claimants redress for damage to them by misinformation or error on the part of Commission's employees. The remedy for a claimant in this position is an action in damages, which he or she may bring directly in the ordinary courts of law, not through the roundabout way of judicial review.

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PRECEDENT: A decided case that furnishes a basis for determining later cases involving similar facts or issues.
BINDING PRECEDENT: A precedent that a court must follow, for example, a lower court is bound by an applicable holding of a higher court in the same jurisdiction.
Black's Law Dictionary

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The precedents established by the Supreme Court, the Federal Court of Appeal and the Umpire, in that particular order, bind Boards of Referees. Likewise, the Umpire is bound by decisions of the Supreme Court and the Federal Court of Appeal and the Federal Court of Appeal is bound by the precedents set by the Supreme Court of Canada.

• CARON A-322-06 Judgment Of The Federal Court Of Appeal : The outcome of this case is governed by the settled jurisprudence of the Federal Court of Appeal, that a return to school, including a training course, is not just cause for leaving an employment within the meaning of sections 29 Employment Insurance Act and 30 Employment Insurance Act of the EI Act: Barnett A-37-96 Judgment Of The Federal Court Of Appeal, Bois A-31-00 Judgment Of The Federal Court Of Appeal, Connell A-46-02 Judgment Of The Federal Court Of Appeal, Lessard A-249-01 Judgment Of The Federal Court Of Appeal, Martel A-1691-92 Judgment Of The Federal Court Of Appeal and Traynor A-492-94 Judgment Of The Federal Court Of Appeal .
  
  Furthermore, CUB 53009 Umpire Decision, which was the basis of the Umpire's determination in this case, was set aside by the Federal Court of Appeal in Connell A-46-02 Judgment Of The Federal Court Of Appeal .
  
  
• HUDON A-34-03 Judgment Of The Federal Court Of Appeal : The Umpire did not have any authority to substitute his own assessment for that of the Commission. He erred in attacking the Commission's practice of establishing guidelines for itself to ensure a certain consistency and to avoid capriciousness in matters involving the imposition of penalties: Rumbolt A-387-99 Judgment Of The Federal Court Of Appeal and Lai A-525-97 Judgment Of The Federal Court Of Appeal .
  
  It is surprising, if not disconcerting, to see that some Umpires continue to do this, as is the case here, despite the unequivocal decisions by this Court: DEEN A-45-03 Judgment Of The Federal Court Of Appeal and Schembri A-578-02 Judgment Of The Federal Court Of Appeal .

Board of Referees cannot decide on an issue that is not before them or that the Commission has not considered

• HAMILTON A-175-87 Judgment Of The Federal Court Of Appeal , VON FINDENIGG  A-737-82 Judgment Of The Federal Court Of Appeal : A Board of Referees must deal with the decision that the Commission in fact made, not one that the Board thinks it could or should have made. Accordingly, a party may not raise an issue at the hearing before the Board which is not part of the decision upon which the appeal is based.

An exception to the above principle exists when determining whether a disqualification under subsection 30(1) of the EI Act   Employment Insurance Actapplies because the employment was voluntarily left or was lost due to misconduct:

• EPPEL A-3-95 Judgment Of The Federal Court Of Appeal , EASSON  A-1598-92 Judgment Of The Federal Court Of Appeal : If, on the facts brought before it, the Board is satisfied that a claimant lost his or her employment due to either voluntary leaving or dismissal for misconduct, the Board of Referees is duty-bound to confirm the disqualification regardless of whether the Commission had thought that the other cause was the one involved. It is the Board's role to verify whether a ruling imposed by the Commission is prescribed by the Act in the circumstances of the case; it does not exist to approve or disapprove the astuteness of the Commission's officers in characterizing the facts. On the other hand, the Board must take the facts as they are established before it, it is not an inquisitorial tribunal required to conduct its own investigation and search. In this instance, the Board is not surpassing its jurisdiction to deal with the decision that the Commission made as the consequences under subsection 30(1) of the Act are the same.
  
  
• LAVOIE A-455-06 Judgment Of The Federal Court Of Appeal : In dealing with a case of insufficient hours of insurable employment to qualify for benefits, the issue is whether the Board of Referees had the jurisdiction to decide to extend the qualifying period, a matter that had not been the subject of a decision by the Commission and was not properly before the Board. The Court ruled that both the Board and the Umpire exceeded their jurisdiction in extending the qualifying period. The proper avenue for the Board would have been to refer the matter back to the Commission under section 82 of the EI Regulations   Employment Insurance Regulationsfor investigation and report.
  
  
• MACDONALD A-542-02 Judgment Of The Federal Court Of Appeal : The claimant was disqualified for voluntary leaving, then found new employment but did not work sufficient hours to re-qualify for benefits. The Federal Court of Appeal concluded that neither the Board of Referees nor the Umpire had jurisdiction to review the original disqualification because it had never been appealed.
  
  
• DYSON A-16-94 Judgment Of The Federal Court Of Appeal : The issue before the Board was the length of the benefit period. However, the Board allowed benefit on the basis that claimant was available for work during a period of disentitlement. In deciding that question, the Board erred by answering a question which was not before it on the appeal.
  

Board of Referees must justify its decision

• OBERDE BELLEFLEUR OP A-139-07 Judgment Of The Federal Court Of Appeal : A Board of Referees must justify its determinations. When it is faced with contradictory evidence, it cannot disregard it. It must consider it. If it decides that the evidence should be dismissed or assigned little or no weight at all, it must explain the reasons for the decision, failing which there is a risk that its decision will be marred by an error of law or be qualified as capricious.

Canadian Charter of Rights and Freedoms

• *CONWAY Supreme Court of Canada 32662 Judgement of Supreme Court Of Canada : In this unanimous decision, the Supreme Court conducted a review of its previous decisions involving the jurisdiction of courts and administrative tribunals. The Court noted its decision in Tetrault-Gadoury and re-iterated: “The Unemployment Insurance Act, 1971 expressly conferred the jurisdiction to consider questions of law on the umpires, not the Board of Referees. This meant that under the legislative scheme, umpires, not the Referees, were authorized to resolve constitutional issues.”
  
  
• MARTIN V WORKERS COMPENSATION BOARD OF N.S. Supreme Court of Canada 28372 Judgement of Supreme Court Of Canada : The Court analyzed its policy adopted in Douglas College, Cuddy Chicks and Tétrault-Gadoury and upheld the principles established in the Tétrault-Gadoury decision [1991], confirming that they are still valid while overruling its decision rendered in Cooper [1996]. Thus, it is confirmed that the Board of Referees do not have jurisdiction to address the application of the Charter, that jurisdiction is expressly conferred on the Umpire.
  
  
• TÉTREAULT-GADOURY Supreme Court of Canada 21222, Judgment Of The Supreme Court of Canada A-760-86, Judgment Of The Federal Court Of Appeal: Since the Employment Insurance Act does not expressly provide a Board of Referees with the power to consider all relevant law, the Board has no jurisdiction to address the application of the Charter. That jurisdiction is expressly conferred upon the Umpire.

EI benefit repayment - clawback

• CRAIB TCC 2004-3003 Judgement Of The Tax Court Of Canada , KOTYLAK TCC 2004-578 Judgement Of The Tax Court Of Canada , POMERLEAU TCC 2001-3384 Judgement Of The Tax Court Of Canada : Appeals relating to EI benefit repayment or "clawback", pursuant to section 145 of the EI Act (Part VII)     Employment Insurance Act, fall under the jurisdiction of the Tax Court of Canada.

Insurability of employment, earnings and hours

• ROMANO A-368-06 Judgment Of The Federal Court Of Appeal, DIDIODATO A-354-01 Judgment Of The Federal Court Of Appeal , BANWAIT  A-470-00 Judgment Of The Federal Court Of Appeal , HABERMAN  A-717-98 Judgment Of The Federal Court Of Appeal , VAUTOUR  A-733-95 Judgment Of The Federal Court Of Appeal , KAUR  A-487-93 Judgment Of The Federal Court Of Appeal : Jurisdiction to make decisions on insurability and the quantum of insured hours and earnings rests with Revenue Canada Taxation, now the Canada Revenue Agency (subsection 90(1) of the EI Act   Employment Insurance Act) and on appeal at the first level to the Minister (section 91 of the EI Act   Employment Insurance Act) and to the Tax Court of Canada at the second level (section 103 of the EI Act   Employment Insurance Act).

Overpayment of EI benefits:

• BRAGA A-522-08 Judgment Of The Federal Court Of Appeal: Without referring to the decisions below, the Court found that a Notice of Debt is appealable to the Board and the appellant bears the onus of demonstrating the inaccuracy of the overpayment amount.
  
  
• VILLENEUVE A-191-05 Judgment Of The Federal Court Of Appeal : The authority to strike, write-off or extinguish a debt does not fall within the jurisdiction of an Umpire hearing a claimant's appeal from a decision of the Board of Referees which upheld the Commission's allocation of earnings.
  
  
• PYNE A-378-98 Judgment Of The Federal Court Of Appeal : The Board of Referees and the Umpire have no jurisdiction to allow the claimant to repay the penalty by way of monthly installments. The Act does not confer such a power on the Board of the Umpire. Arrangements for the repayment of a penalty are left for the Commission to make with a claimant.
  
  
• CLAVEAU et al T-1268-07 Judgment Of The Federal Court Of Appeal, WOODS A-417-01 Judgment Of The Federal Court Of Appeal , IDEMUDIA  A-9-98 Judgment Of The Federal Court Of Appeal , FILIATRAULT  A-874-97 Judgment Of The Federal Court Of Appeal : The Board of Referees did not have the jurisdiction to decide whether the Commission had rightly refused to write-off the debt. The debtor should have proceeded by requesting a judicial review before the Trial Division of the Federal Court of Appeal (now known as the Federal Court) and not by appealing to the Umpire. Obviously the Commission must record its decision and convey it to the person concerned.
  
  
• CORNISH-HARDY A-647-78 / SUPREME COURT Number 15944 (1980)   Judgment Of The Federal Court Of Appeal : Section 79 [now s. 114]   Employment Insurance Actconfers a right of appeal on "claimant" who is aggrieved by a decision of the Commission on a claim for benefit or reconsideration of such a claim under section 43 [now s. 52]   Employment Insurance Act. Paragraph 44(i) [now 54(k)] of the Act   Employment Insurance Actwas not intended to authorize and Regulation 175 [now 56]   Employment Insurance Regulationsdoes not provide for appeals against the Commission's refusal to write-off an overpayment.

Referral to a course of instruction or program, approval of a worksharing agreement or job creation project

• GEORGES A-372-96 Judgment Of The Federal Court Of Appeal : A decision of the Commission referring or refusing to refer a claimant to a course is not subject to appeal.
  
  
• PURCELL A-694-94 Judgment Of The Federal Court Of Appeal : A decision of the Commission to approve or refusing to approve a work-sharing agreement, job creation project or certain types of developmental assistance, is not subject to appeal to under section 114 Employment Insurance Act or 115 Employment Insurance Act of the EI Act. In addition, a decision of the Commission to refer or refusing to refer a claimant to a course of instruction or program, may not be appealed. (Subsections 24(2) Employment Insurance Act and 25(2) Employment Insurance Act of the EI Act).