CHAPTER 1

ADMINISTRATIVE JUSTICE AND TRIBUNAL PROCEEDINGS

1.1 General Characteristics of Administrative Proceedings

1.1.1 The Board is a Tribunal

1.1.1.2 An Appeal Tribunal

The Act makes the Board of Referees an appeal tribunal from decisions of the Commission relating to employment insurance benefits ( A. 114). The Act and the Regulations indicate how this appeal is to proceed; they do not set out the grounds of appeal or the role of the board, unlike the situation with respect to the Umpire, where s. 115(2) sets out the grounds of appeal and s. 117 defines the powers of the Umpire, stating that he or she may dismiss the appeal, give the decision that the Board of Referees should have given, refer the matter back to the Board of Referees for rehearing or redetermination in accordance with such directions as the Umpire considers appropriate and confirm, rescind or vary the decision of the Board of Referees in whole or in part.

Since the Act and the Regulations are silent on this point, reference must be made to administrative law.³¹ An appeal is essentially a remedial approach in the sense that the appeal tribunal may not only quash a decision but also vary it to reflect the decision that the initial decision maker should have given. The Court of Appeal has admitted that "these powers are considerable".³²

However, there is a difference between an appeal to a court of law and an appeal to an administrative tribunal, although there are elements common to both. While an appeal to a court of appeal is an appeal on the record created before the tribunal of first instance, the latter is more "a review at first instance of the rights of the parties", that is an initial trial that results in a decision and includes an inquiry and a hearing.³³ On the other hand, unless its jurisdiction is expressly limited or defined by the Act, an administrative appeal tribunal decides not only on the merits, that is on the correctness in fact and in law of the Commission's decision and its legality in terms of procedure and substance, but also on the very jurisdiction of the first decision maker, in this case the Commission official.³⁴

As an appeal tribunal, the board is governed by the rules of jurisdiction, which in this case are expressly set out in the Act: depending on the case, the board will hear an appeal brought by a claimant, an employer or any other person who is the subject of a decision by the Commission. The board cannot therefore give itself jurisdiction in a case, which is not true of the review provided for in s. 120 of the Act  , where a board may review its own decision, as we shall see later. If the appeal is not properly brought, the board must dismiss it.

Moreover, like any other tribunal, the board is subject to the ultra petita rule, that is the principle that a tribunal may not rule on questions that are not submitted to it or grant a remedy that is not requested of it: [Translation] "public order requires that the consideration be restricted to what is requested";³⁵ that is the principle of ultra petita. Consequently, the board does not have to rule on a question that is not subject of the appeal,³⁶ that is not before the board³⁷ or that the Commission has not considered.³⁸

Section 82 of the Regulations  gives the chairperson of the board a power enjoyed by few appeal tribunals, which may not be used to circumvent the principle of ultra petita. Before the board has given its decision, the chairperson may "refer any question arising in relation to a claim for benefits to the Commission for investigation and report". This provision shows the inquisitorial nature of administrative justice, as we shall see later.

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