Appeal to Board of Referees
II. Principles of Law
(f) Hearings before the Board: Practice and Procedure
(i) General
The Chairperson determines the procedure at a hearing of the Board, and the Board, must then give each of the interested parties "a reasonable opportunity to make representations concerning any matter before the board." The appellant has a right to be heard and to be treated fairly in accordance with the rules of natural justice.
(ii) Notice of Hearing
The legislation provides that a person required to attend a hearing before the Board of Referees must be notified in writing by the Chairperson or by an officer of the Commission.
Subsection 80(6) Employment Insurance Regulations Employment Insurance Regulations
However, the legislation does not specify which persons are required to attend a hearing before the Board. Nevertheless, the claimant and/or the employer, if it is the employer who has filed the appeal, must be given notice of the hearing since it is they who have the power to appeal the Commission's decision to the Board.
The legislation imposes a duty on the Chairperson of the Board to inform interested parties that a hearing will be held before a Board of Referees. But the Chairperson is not required to invite other persons to attend nor to compel them to attend.
(iii) Evidence Before the Board
A Board of Referees, like other administrative tribunals, is not bound by the "strict rules of evidence applicable in criminal or civil courts." Accordingly, a Board may receive and accept hearsay evidence.
Canada (A.G.) v. Mills [1984], F.C.J. No. 917 (F.C.A.) A-1873-83 Judgment of the federal court of appeal
Caron v. Lojen Industrial Cleaning, [2002] F.C.J. 912 (F.C.A.) A-468-00 Judgment of the federal court of appeal
The formal rules of evidence developed for the smooth functioning of Courts should not be strictly applied to hearings before the Umpire. The principles of natural justice and the legislation itself suggests that submissions by claimants should be accepted very liberally at all levels of the appeal and review process
A Board of Referees is entitled to reject the evidence before it after weighing and assessing it but it cannot ignore the evidence. A Board of Referees must justify its determinations. When it is faced with contradictory evidence, it cannot disregard it. It must consider it. If the Board decides that the evidence should be dismissed or given little or no weight, then it must explain its reasons for that decision. Failure to do so mean that the Board's decision is at risk of being marred by an error of law or be held to be capricious.
Boucher v. Canada (A.G.),October 17, 1996, F.C.J. No. 1378 (F.C.A.) A-270-96, Judgment of the federal court of appeal A-271-96, Judgment Of The Federal Court Of Appeal A-272-96 Judgment Of The Federal Court Of Appeal
Rancourt v. C.E.I.C., October 30, 1996, F.C.J. No. 1429 (F.C.A.) A-355-96 Judgment of the federal court of appeal
Maki v. Canada (Employment Insurance Commission), June 11, 1998, F.C.J. No. 1129 A-737-97 Judgment of the federal court of appeal
Canada (A.G) v. Bellavance, 2005 FCA 87 A-553-03 Judgment Of The Federal Court Of Appeal
Maher v. Canada (A.G.), 2006 FCA 223 (FCA) A-344-05 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Renaud, 2007 FCA 328 A-369-06 Judgment Of The Federal Court Of Appeal
Oberde Bellefleur OP Clinique Dentaire O. Bellefleur v. Canada (A.G.), 2008 FCA 13 A-139-07 Judgment Of The Federal Court Of Appeal
(iv) Witnesses
The Chairperson of the Board has a duty to inform interested parties of the hearing but is not required to call a witness to testify at the hearing. Under the legislation, neither a claimant nor a Board of Referees is entitled to subpoena witnesses.
Bacon v. Canada, October 15, 1985, F.C.J. No. 925 (F.C.T.D.) T-1689-85 Judgment of the federal court of appeal
Canada (A.G.) v. Childs, May 26, 1998, F.C.J. No. 721 (F.C.A.) A-418-97 Judgment of the federal court of appeal
(v) Representative Appeals
Where the factual circumstances and legal issues are the same for a number of claimants, a representative appeal may be launched. However, representative actions may only be proceeded with where all parties are in agreement. Claimants cannot unilaterally insist on proceeding by way of a representative appeal if the Commission or Board of Referees does not consider this desirable.
Lemieux v. C.E.I.C., [1977] 2 F.C. 246 (F.C.T.D.) T-1343-77 Judgment of the federal court of appeal
However, where claimants and the Commission are unable to agree, a Board of Referees may, in any event, decide to consider the matter as a representative appeal and may apply its findings in one case to other cases which are individually before it.
Lemieux v. C.E.I.C., [1977] 2 F.C. 246 (F.C.T.D.) T-1343-77 Judgment of the federal court of appeal
(vi) Transcript of Hearing
Absent a statutory duty to record an administrative proceeding – and none exists here – the failure to produce a tape recording or a transcript of a hearing does not in itself constitute a breach of the duty of fairness. In order to establish a breach of the duty of fairness, a person must show that the absence of the tape or transcript effectively denied the person a right of appeal or judicial review by preventing the reviewing body form discharging its statutory function.
Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 Canadian Legal Information Institute site
Donnelly v. Canada (A.G.) [2000], 261 F.C.J. 388 (F.C.A.) A-434-98 Judgment Of The Federal Court Of Appeal
Canada (A.G.) v. Valladolid, [2004] F.C.J. No. 601 (F.C.A.) A-238-03 Judgment Of The Federal Court Of Appeal
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