AN INTRODUCTION TO TRIBUNAL PROCEEDINGS

 

1. Dominant Features of Administrative Justice and Tribunal Proceedings

1.1 The Board Is a True Tribunal

Some authors have felt that the Board of Referees is not a tribunal, or even an administrative law body of any kind, but rather a kind of complaints committee to which a dissatisfied claimant can protest. We believe, on the contrary, that the board is a true tribunal that Summary ! Publication Number is defined by its essential function: to arbitrate a conflict and make a judgment.

The fact that the Board of Referees is not a permanent institution but rather a body created each time a claimant or an employer files an appeal (Employment Insurance Act, [hereinafter A.] 111 Employment Insurance Act) does not deprive it of its status as an administrative tribunal that perfectly embodies the essential characteristics of the adjudicative, that is, judicial or quasi-judicial, function.

The Act and the Regulations use a form of terminology that normally belongs to the adjudicative function; the terms used there include appeal, grounds of appeal, hearing, practice and procedure, testimony, parties, filing of the decision, inter alia (A. 111-114 Employment Insurance Act; Employment Insurance Regulations, [hereinafter R.] 78-83 Employment Insurance Regulations). The Court of Appeal and the Umpire have regularly described the board as an "administrative tribunal" or even as a "judge"; it participates in the administration of justice.

Since it has the jurisdiction of a true tribunal, the board may and even must exercise this jurisdiction conferred on it, even where another tribunal such as a labour arbitration tribunal, a criminal court or a civil court hears a case dealing with the same facts.

It could be argued by some that the Board of Referees is not a true tribunal because it does not have the power to summon witnesses, issue subpoenas or convict persons of contempt of court. This assumption would be wrong. These powers are part of the inherent jurisdiction of the superior courts but any other tribunal must have them conferred on it expressly by law. Thus, a number of administrative or quasi-judicial tribunals are not authorized to exercise this kind of power.

Finally, the board is a true tribunal, although the majority of its members have no legal training. This is common in the case of administrative tribunals in which multiple disciplines are the rule. The board is a court of ordinary people, a "lay tribunal" that seeks to render justice without formality or pettifoggery.

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