Appeal to Umpire

II. Principles of Law

(h) Remedies

Pursuant to the legislation, an Umpire may dispose of an appeal in one of four ways. He or she may dismiss the appeal and allow the Board's decision to stand.

If the appeal is allowed and the Board's decision is set aside, the Umpire has two options; either to decide the matter or return the case to a Board for rehearing and/or redetermination with such directions as the Umpire considers appropriate. Finally, the Umpire may confirm, rescind or vary any "part" of the Board's decision while exercising any one of the above options.

Section 117 Employment Insurance Act

Where it is the claimant who is appealing the Board's decision, the mere setting aside of the Board's decision will not in itself be sufficient to resolve the appeal. An Umpire must either give the decision that the Board should have given or refer the matter back to the Board. Failure to do so results in leaving the Commission's determination intact and would require the claimant to initiate a new attack on it.

Penner v. Canada (A.G.) [1984], F.C.J. No. 115 (F.C.A.) A-1420-83
Canada (A.G.) v. Silver, June 6, 1988, F.C.J. No. 521 (F.C.A.) A-715-87

Even though an Umpire has the power to make the decision which the Board of Referees should have made, this can only be done when the evidence in the record is sufficiently clear and when it does not lend itself to subjective interpretation and assessment.

Maki v. Canada (Employment Insurance Commission), June 11, 1998, F.C.J. No. 1129 (F.C.A.) A-737-97

When an Umpire remits a matter back to the Board of Referees, it is open to the Umpire to specify the manner in which the rehearing will proceed, whether by way of a fresh hearing on new evidence, a hearing on the record before the first Board of Referees or a combination of the two. Those options are not exhaustive. As long as the procedure is fair, there are a number of options open to an Umpire when sending a matter back to a Board of Referees for redetermination.

Francella v. Canada (A.G.), [2003], F.C.J. No. 1747 (F.C.A.) A-455-02

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