AN INTRODUCTION TO TRIBUNAL PROCEEDINGS

 

2. Hearing by the Board of Referees

2.3 Preliminary Objections

At the commencement of a hearing, any party before a tribunal may make so-called preliminary objections. Strictly speaking, these do not involve the grounds of appeal referred to in s. R. 79 Employment Insurance Regulations. Ordinarily, they are arguments to have the appeal dismissed for reasons that do not go to the merits of the dispute; they may also involve an application of some other kind, related to the respect of the principles of natural justice.

2.3.1 Objection to the Tribunal's Jurisdiction

It is by bringing an application at the commencement of the hearing that a party may object to the material jurisdiction of the tribunal within the meaning of s. A. 114 Employment Insurance Act. It is possible that, on its face, the case does not involve a decision of the Commission or that the decision relates to a matter that cannot be appealed, as we have seen. If the parties realize that the board does not have the necessary quorum or that the membership is incorrect, this is also the point at which this objection should be raised.

2.3.2 Objection That the Appeal Is Late

The party which realizes that the appeal is late, that is, beyond the period of 30 days prescribed in s. A. 114 Employment Insurance Act or any additional time allowed by the Commission for special reasons, may raise a preliminary objection to this effect. Generally speaking, however, the claimant who is late takes the initiative and applies to the Commission for an extension.

It is the task of the Commission under s. A. 114 Employment Insurance Act, to determine what the special reasons are, but it must exercise this discretion judiciously, that is, in a manner that is not arbitrary. The decision of the Commission in this regard may be appealed to the board.

2.3.3 Motion for Adjournment

Depending on the circumstances, the rules of natural justice may mean that one of the parties has the right to request an adjournment. Since the tribunal is responsible for its procedure, it has the power and the duty to determine whether an adjournment is truly necessary or merely abusive; the courts will intervene only if the refusal of an adjournment is unjust or arbitrary.

2.3.4 Motion To Recuse or Disqualify

A party will normally request that the chairperson or a member of the board recuse himself or herself in a preliminary motion for one of the reasons set out in s. R. 78 Employment Insurance Regulations, specifically, conflict of interest or those recognized in administrative law. The motion aims at ensuring the impartiality of the tribunal and its members.

 

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