CHAPTER 3

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EVIDENCE

3.2 Burden of Proof

Theoretically, a person who is seeking an authorization or benefit or is challenging a decision must satisfy the tribunal as to his or her right or eligibility. In this respect, the proceedings are adversarial and not inquisitorial. Although it has often been said that the burden of proof is on the applicant or appellant,^{407 Citation} this is not an immutable principle. There are many kinds of administrative tribunals, and owing to the principle that tribunals are in charge of evidence and procedure, there are numerous frameworks in this regard. The frameworks vary according to the legislation and the kinds of facts involved. The burden of proof may be reconfigured, or even shifted from the government to the citizen, if social welfare is involved, the parties are economically unequal, or information in the possession of the government places it at an advantage.

It should be borne in mind that the burden of proof issue should not be confused with the order in which a tribunal hears the parties and their witnesses - a procedural issue that falls within that tribunal's discretion.^{408 Citation} He or she who bears the burden of proof must take the initiative to persuade the tribunal and "bear the consequences of any gap in the evidence".^{409 Citation}

The burden of proof is sometimes reversed in professional discipline cases and disciplinary grievance arbitrations, where the procedure is considered adversarial because the citizen is being accused of a wrongdoing that must be proven to the tribunal. The disciplinary body or employer must discharge the burden of proof;^{410 Citation} to hold otherwise would be to require the professional or employee to establish his or her innocence without hearing the evidence against him or her. That would be a denial of natural justice.

In discrimination complaints before human rights tribunals, the burden is partially shifted to the party accused of discrimination. If the complainant presents prima facie proof of discrimination, the employer or other party suspected of discrimination must show its action was justified under an exception provided by law or that reasonable accommodation had been made.^{411 Citation}

In administrative tribunals that deal with social welfare issues, the tendency is to balance the burden of proof between the citizen and the state. Y. Ouellette writes:

[Translation] The principle of the autonomy of evidence has made it possible for administrative tribunals to adapt to circumstances that appeared to call for them to exercise discretion and apply their creativity. The burden of proof should not be assigned on an impulse, based on what others are doing. The choice should stem from considered thought about the stakes involved and the inequalities between the parties. Given the climate of confrontation it would engender between citizens and the state, it might seem fundamentally unfair, and perhaps even inconsistent with the spirit of social welfare legislation, to require the victim of a work accident or a social assistance recipient to bear the burden of proof. The state should neither act nor be seen to act as the adversary of its citizens, because its role is to give citizens that to which they are entitled - nothing more; nothing less. Thus, in cases such as these, owing in part to the unequal power involved, the procedure can be inquisitorial rather than adversarial, whether or not the claimant is represented. On appeal, the government should disclose the entire case to the tribunal, whether favourable or unfavourable to the citizen. . . . ^{412 Citation}

Under s. 49(2) of the EI Act Employment Insurance Act, the Commission must give the benefit of the doubt to the claimant on the issue of whether any circumstances or conditions exist that have the effect of disqualifying the claimant under s. 30 Employment Insurance Act or disentitling the claimant under s. 31 Employment Insurance Act, 32 Employment Insurance Act or 33 Employment Insurance Act, if the evidence on each side of the issue is equally balanced. This provision effects a kind of lightening of the burden of proof before the tribunal, but it does so under conditions specified by the statute, i.e., when the evidence of the claimant and the evidence of the Commission are of equal weight.

Our cases are quite clear on the allocation of the burden of proof between the parties. In the following kinds of cases or situations, it can be regarded as shared.

(a) Establishing entitlement to regular benefits under ss. 14 Employment Insurance Regulations and 35 of the EI Regulations Employment Insurance Regulations: claimants must show they meet the requisite conditions (s. 49 of the EI Act Employment Insurance Act) and the Commission must verify whether the claimant truly meets them (s. 9 of the EI Act Employment Insurance Act).^{413 Citation}

(b) Labour dispute cases: the Commission must prove that the loss of employment was the result of a work stoppage attributable to a labour dispute.^{414 Citation} The claimant must prove he or she satisfies the requirements, i.e., that he or she is not participating in, financing or directly interested in the labour dispute (ss. 49 Employment Insurance Act and 36(4) of the EI Act Employment Insurance Act).

(c) Penalty cases: the Commission must show the claimant or employer knowingly made a false or misleading claim or declaration. The claimant or employer must either show that the declaration or claim was not false, or that it was not made knowingly.^{415 Citation}

(d) The issue of availability for work: the claimant must show that he or she is willing to work and is seeking suitable employment; the Commission must show that the claimant is not available for work for an unacceptable reason.^{416 Citation}

(e) Voluntarily leaving employment: the Commission must show the claimant voluntarily left his or her employment on his or her own initiative. The claimant must show he or she had a valid reason for doing so within the meaning of s. 29(c) of the EI Act Employment Insurance Actand s. 51 of the EI Regulations Employment Insurance Regulations.^{417 Citation}

(f) Determination of earnings for the purpose of entitlement to benefits: the Commission must collect the rejected information to determine the earnings and how they should be allocated. The claimant must report all money paid or payable to him or her and either prove that it was not earnings, or that it should not be allocated in the way it was allocated.^{418 Citation}

In the following instances, the claimant alone is considered to have the burden of proof.

(a) Claims for a category of special benefits.^{419 Citation}

(b) Antedated claims for benefits: the claimant must show he or she meets the conditions and has a valid reason for filing late.^{420 Citation}

(c) Refusal of employment: the claimant must show the employment is not suitable or that he or she refused it for a valid reason.^{421 Citation}

(d) Absence from Canada: claimants who leave Canada without permission must show they satisfy the conditions of s. 55 of the EI Regulations Employment Insurance Regulations.^{422 Citation}

(e) Unreported earnings: a claimant who has neglected to report earnings must either show that they are not wages, or that they are not from employment within the meaning of s. 15 of the EI Regulations Employment Insurance Regulations.^{423 Citation}

(f) Determination of a week of unemployment (ss. 9 Employment Insurance Act and 11 of the EI Act Employment Insurance Actand R. 29-32 of the EI Regulations Employment Insurance Regulations): the claimant must establish he or she did not work the full week.^{424 Citation}

(g) Requests for an amendment under s. 120 of the EI Act Employment Insurance Act: the claimant must show new facts or another ground recognized by administrative law.^{425 Citation}

(h) Special benefits: the claimant must prove inability to work because of sickness or injury.^{426 Citation}

(i) If the claimant has made a seemingly false or incorrect statement, the burden of proof is reversed.^{427 Citation}

Finally, the burden is shifted to the Commission and the employer in cases of dismissal for misconduct. The Commission must establish that the loss of employment is the result of the employee's disciplinary misconduct.^{428 Citation} The Commission cannot merely allege that there has been a conviction following criminal proceedings; it must adduce "more evidence" before a disqualification on the basis of misconduct can be sustained.^{429 Citation}

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