CHAPTER 5

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DELIBERATIONS AND DECISION

 

5.2 Decision

5.2.2 Structure of Decision

The decision of a board is above all addressed to ordinary people. Its structure must be simple, it must be concisely written and it must meet the following requirements: it must be sufficiently complete, precise and intelligible. This is not an easy task.

The form used by the boards (INS 2244 and 4006) contains two parts: the issue involved, and the reasoning and statements of the findings of the Board of Referees on questions of fact material to the decision.

Clearly, the second part actually contains two parts. The first part consists of the reasons.

The Handbook explains what the reasons should contain:

  • all the evidence taken into account from the submission, and further oral and written evidence provided at the hearing; and
  • how the evidence was analysed, what evidence was found to be fact and which sections of the Employment Insurance Act, Regulations and jurisprudence apply.

Umpires often overturn Board of Referees' decisions because the board failed to provide a statement of their finding of fact as required by the EI Act. A rule of thumb for board members might be to "expose all they know and all of their reasoning." For example:

  • What was the gist of the oral testimony?
  • What evidence was found to be fact?
  • Where were these facts found in the evidence (exhibit numbers, oral testimony)?
  • What evidence was contradictory, what does the board make of this, and why?
  • Are there any facts or evidence missing which could lead to an adjournment?
  • Did the board obtain all the evidence required to render a decision?

Once the facts are established and summarized in the board's decision, all parties to the appeal have a right to know the implications. In other words, the parties want to know why some evidence was given more weight than others, what the link was between the particular facts of the case and the legislation, what principles in the jurisprudence apply, and what CUB decisions and Federal and Supreme Court of Canada decisions were relied upon given the particular facts. This process allows parties to understand why the board decided as it did. It is here that the parties to the appeal may determine if the board has made an error in law or has been perverse or capricious.

As the foregoing discussion illustrates, drafting reasons is a demanding task. That reasons must be concise only adds to the complications. 619 Citation 619

The third part of a decision is the conclusion. The conclusions can be legal (what rule of law or jurisprudence applies) or factual (the claimant voluntarily left his or her employment without just cause).

 

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