CHAPTER 1

ADMINISTRATIVE JUSTICE AND TRIBUNAL PROCEEDINGS

 

1.2 Characteristics of Tribunal Proceedings in Employment Insurance Cases

1.2.2 Collegiality

A board is essentially a collegial tribunal in the sense in which s. 111 Section 111 of the Act prescribes its membership, namely a chairperson and one or more members. It is the Regulations that prescribe the quorum, which is in principle three, that is a chairperson and two members, one of whom represents employers and the other insured persons. In exceptional cases, that is, with the consent of the claimant or the employer, this quorum may be only two, including the chairperson. This provision of the Regulations has been upheld by the Court of Appeal.^{262 Citation 262}

The question of a quorum goes to the very jurisdiction of the tribunal; it is a question of public order. The case law is very categorical on this point, including the decisions of the Federal Court of Appeal.^{263 Citation 263} A quorum must be maintained at all times.^{264 Citation 264} A tribunal that sits after the mandate of its members has expired^{265 Citation 265} or where they have been irregularly appointed^{266 Citation 266} is improperly constituted.

This case law applies to the Board of Referees. A quorum of two is possible only where the chairperson is one of them and the claimant or the employer waives the presence of a member representing the unions or employers, as appropriate.^{267 Citation 267} The consent of the parties is thus limited and may not "confer jurisdiction that the Act does not confer".^{268 Citation 268}

A quorum must be maintained at all times; if a member is absent for most of the hearing, the decision will be quashed.^{269 Citation 269}

The question of the quorum is linked to the question of maintaining the membership of this quorum. Thus, the membership of the board may not be changed during the hearing process^{270 Citation 270} or after an adjournment.^{271 Citation 271} Where the chairperson asks the Commission for additional investigation or further evidence, the hearing must be continued by the same board consisting of the same members.^{272 Citation 272} Where the chairperson or another member dies or can no longer sit when a hearing has not been completed, it seems that the case must be submitted to another Board of Referees "for a hearing de novo".^{273 Citation 273}

The membership of a board, just like the quorum, is a question of jurisdiction and the "jurisdiction of a board is always based on the strictest provisions...".^{274 Citation 274} Thus, an Umpire does not have the power to order that a panel have at least one woman as a member.^{275 Citation 275}

The case law enshrines another important rule of administrative law rule to the effect that the decision maker must have heard the evidence.^{276 Citation 276} The Supreme Court has stated the following on this point: "No member who has not heard all the evidence may properly take part in the decision."^{277 Citation 277} Accordingly, someone who is absent from part of the hearing cannot take part in the decision; it would be illegal to do so.^{278 Citation 278} 

 

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