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ADMINISTRATIVE JUSTICE AND TRIBUNAL PROCEEDINGS
1.1 General Characteristics of Administrative Proceedings
1.1.1 The Board is a Tribunal
18.104.22.168 A Statutory Tribunal
In the Canadian justice system, there are so-called common law courts and statutory courts or tribunals. The former have a general jurisdiction which they derive to some extent from the Constitution: this is true of the superior courts and, to some extent, the Federal Court. All the others are inferior courts or tribunals whose jurisdiction are expressly conferred on them by statutes. This is the case for the boards of referees and the Umpire.
The Employment Insurance Act defines the so-called material jurisdiction of the board, that is to say the subject matter concerning which it may render decisions: this is called its primary jurisdiction and s. 115(2) Section 115(2)of the Actmakes express reference to it. The board has jurisdiction to render decisions concerning eligibility for benefit but not concerning the insurability of employment. 39 Citation 39
In principle, any decision of the Commission referred to in s. 114 Section 114 of the Actmay be appealed, 40 Citation 40 although there are exceptions. Thus, the notice sent to a person stating that he or she is not entitled to receive benefits because his or her employment was not insurable may not be appealed to the board.41 Citation 41 Moreover, the Court of Appeal has ruled that neither the board nor the Umpire has jurisdiction to exercise, in the Commission's place, "the extraordinary power" conferred by s. 50(10) Section 50(10)of the Act(formerly section 55) (formerly s. 55).42 Citation 42 In principle, the board may not exercise, in the Commission's place, a discretionary power that belongs exclusively to the Commission;43 Citation 43 this is true in the case of write-offs.44 Citation 44 It is also true in the case of extensions of time.45 Citation 45 However, once the Commission has made its decision, the board has jurisdiction to ascertain whether the Commission "exercised its jurisdiction judiciously", that is, in a manner that was not arbitrary.46 Citation 46 The board must determine whether the Commission's power was in fact exercised.47 Citation 47 There is no appeal when the Commission has made no decision.
The decision in which the Commission determines whether or not to impose a penalty is not as such subject to review by the board. However, once the decison has been taken, the board has the necessary jurisdiction to review the reasons for imposing a penalty and to vary the amount;48 Citation 48 in that case it may only determine whether the Commission exercised its discretionary power judiciously.49 Citation 49 The board does not have appeal jurisdiction over a decision by the Commission to refer or not to refer a claimant to a course or other training.50 Citation 50 This is true of decisions concerning a work-sharing agreement (ss. 14(2) Employment Insurance Act and 25(2) Employment Insurance Act) or concerning assistance under prescribed employment benefits ( s. 25 Employment Insurance Act).
The board is an appeal tribunal; this suggests that it may rule only on errors of law or of fact made by the Commission, specifically the incorrect application of the Act, Regulations or case law. The permissible grounds of appeal are accordingly limited: while the fact that the claimant is disappointed or disagrees with the Commission is not a ground of appeal,51 Citation 51 the same principle will apply when a claimant considers the decision unfair or believes that the law is too harsh.52 Citation 52 The board does not have jurisdiction to render a decision in equity that is contrary to the clear provisions of the Act, which it may not refuse to apply.53 Citation 53
The board must fully exercise its jurisdiction. It cannot refuse or fail to rule on questions of fact essential to the case at hand.54 Citation 54 As a statutory tribunal, it can only apply the remedies provided by the Act. Like the Umpire it may feel limited and unable to correct a situation the claimant believes is unfair.55 Citation 55 As a tribunal, the board cannot rule against the Act, Regulations or jurisprudence applicable to it.56 Citation 56 As a tribunal, however, the board is not subject to the Commission's directives, guides, administrative policies or forms, to the extent that the Act and Regulations must come first,57 Citation 57 and the board must conduct its own interpretation of the law and the facts.58 Citation 58
Besides its primary jurisdiction, a statutory tribunal has been recognized in the case law as having accessory or auxiliary jurisdiction. First, any tribunal may render a decision concerning its own jurisdiction, whether the question is raised by a party that objects to this jurisdiction or is raised by the tribunal itself on its own motion.59 Citation 59 Second, a tribunal may rule on any question of procedure, especially one concerning the application of the rules of natural justice and the rules of evidence. In some cases the Act or the Regulations indicate that the chairperson must render certain decisions, as is true of ss. R. 80 to 83 Employment Insurance Regulations . Third, any tribunal is subject to the Canadian Charter of Rights and Freedoms and the applicable quasi-constitutional legislation; it must accordingly take these statutes into account in exercising its jurisdiction when the Charter Canadian Charter of Rights and Freedoms is relied upon against a decision of the Commission60 Citation 60 or when a discriminatory practice by the Commission or an employer is alleged.61 Citation 61 Thus, these statutes may be relied upon before the Board of Referees, which has a duty to apply them. However, this does not authorize it to rule on the constitutionality of the Act and the Regulations itself, as we shall see later.