AN INTRODUCTION TO TRIBUNAL PROCEEDINGS
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4. Deliberations and Decision
4.4 Challenging the Decision
Either party, if it is dissatisfied with a decision of a board, may challenge that decision following a number of proceedings, i.e., by way of review under s. 120 of the Act Employment Insurance Act, on appeal to the Umpire and, finally, to the Federal Court of Appeal.
A review or rehearing under s. 120 Employment Insurance Act is held before the same board, or a different board of different membership, where appropriate, for allegations of new facts, and for allegations that the decision was rendered before an essential fact became known, or that the decision was based on an error relating to such a fact. An application for review may also be granted if the board failed to decide a question or if it held the hearing in the claimant's absence. A review may also be ordered by the Umpire, who will then refer the matter back to the same board or to one of different membership.
A final decision of the Board of Referees may be appealed to the Umpire, another administrative appeal tribunal created by the EI Act. The grounds for appeal are set out in s. 115 Employment Insurance Act: failure to observe the principles of natural justice, acting beyond or refusal to exercise jurisdiction, erring in law, decision based on an erroneous finding of fact that was made in a perverse or capricious manner or without regard to the material before it. The Umpire, in this case a Federal Court justice, hears the appeal, decides any legal issue under the Charter and makes the decision; he or she may refer the matter back to the board. In general, Umpires must not substitute their opinion for that of the board on a question that is essentially one of fact or of evaluating the evidence of the facts or the credibility of the witnesses, except in cases of abuse of power under section 115.
A decision of the Umpire may be challenged under s. 28 of the Federal Court Act in the Federal Court of Appeal. Questions open to judicial review are for the most part those found in s. 115 of the Act Employment Insurance Act. The Court of Appeal normally defines the case law; by choosing between various interpretations, the Court often acts as a kind of arbitrator between the boards of referees and the Umpires.
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