Difference between pages "Social Security Tribunal Overview (8:XIII)" and "Appeals to the Social Security Tribunal General Division (8:XIV)"

Revision as of 23:47, 20 September 2020

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July, 2019.

A. Appeal Docket

The Commission receives and reviews the appeal letter and, unless convinced to reverse its decision by the information contained in it, will set the place and date of appeal and send the claimant and the employer an “Appeal Docket”. The docket contains all documents from the Commission’s file regarding the claim that it considers relevant to the issue. The docket is given to the claimant, the General Division, and to the employer if the employer asks to participate.

The docket should be carefully reviewed, as the appeal must meet the Commission’s argument and evidence. The docket includes the “Representations of the Commission to the General Division”, which is basically the Commission’s written argument supporting its decision. Otherwise, the Commission usually does not appear at the hearing.

NOTE: All adverse decisions should be listed under item no. 2 of the appeal form. There have been cases where claimants who claimed they were appealing a letter of overpayment without mentioning the penalty imposed in a different letter were told at the hearing that the Referees have no jurisdiction over the penalty by reason of this omission.

B. Preparation for Appeal to the General Division

When reviewing the docket and preparing for the appeal, the claimant and their representative should consider the:

“Representations of the Commission to the General Division” (this is the Commission’s justification for its decision);
evidence relied upon by the Commission; and
Umpire decisions or now SST Appeal Division decisions cited by the Commission.

The docket contains most of the relevant documents and also summarizes all statements made by the claimant to the Commission, as well as the Insurance Officer’s decision and comments. Read the docket carefully and be prepared to comment on it.

In many cases, the claimant may have to explain that the statement does not accurately reflect what they really intended to say. For example, the claimant did not mean to say that they would only work for $12.50 per hour and no less. Rather, the claimant meant that they would prefer $12.50 per hour, but would work for the going rate. The claimant will have to overcome the SST’s inclination to believe what the claimant said in their statement as opposed to what is being said now, after disentitlement. The claimant must convince the SST of his or her honesty.

Under the Privacy Act, R.S, 1985, c. P-21 a claimant has a right to access the entire claim file, whether there is an appeal pending or not. This may include the documents that are not part of the docket because the Commission did not consider them relevant. If details of the Commission’s record may be important to the outcome, the advocate should ask for full disclosure of all relevant files.

The jurisprudence on EI includes more than 80,000 decisions of the Umpire, along with perhaps a thousand or so decisions of the Federal Court of Appeal and the Supreme Court of Canada. Most of these decisions can be found (and searched by key words) on Canlii or the Social Security Tribunal Website at https://www1.canada.ca/en/sst/ad/index.html. A claimant or representative should always read the cases upon which the Commission is relying. Often the quoted excerpt is taken out of context, and the facts are so different that the case can be easily distinguished, or even used to support the appeal.

Any exhibits, cases, or written arguments should be submitted to the General Division ahead of the hearing date, if possible. This will give the Tribunal a chance to familiarize themselves with the materials, and make more efficient use of the hearing. The Tribunal will accept new evidence at the hearing, but may adjourn it if the material is lengthy.

Service Canada’s EI website contains links to the legislation, the jurisprudence library an index of jurisprudence, as well as the General and Appeal division website. The website is available at: http://www.servicecanada.gc.ca/eng/sc/ei/index.shtml.

C. Hearings Before the General Division

1. Claimant’s Preparation

The claimant should be neat in appearance, be prepared to submit a job search if relevant, and be prepared to present the facts of his or her situation. The claimant should also be prepared to answer questions directly and clearly.

In cases where credibility is crucial, claimants may consider preparing a sworn affidavit or statutory declaration of the evidence if the facts are in dispute, since sworn evidence carries greater weight. The affidavit or declaration can also form a useful “record” of the claimant’s case and is especially useful in cases where there are contradictory statements.

2. Representative’s Preparation

The representative should also be neatly dressed, which in the case of LSLAP clinicians means courtroom clothing. The representative should:

a) prepare a legal basis to allow the appeal, using the EI Act, EI Regulations, Digest, and jurisprudence;
b) spend some time before the hearing with the claimant reviewing facts, explaining legal arguments and anticipating questions;
c) meet with witnesses, explain Tribunal procedure, and review with them the questions that will be asked of them at the hearing;
d) prepare a written list of points to be made in the claimant’s favour. This is to ensure that if and when “sidetracked” by the General Division, none of the points will be forgotten. It will also be helpful in “making a record” to give to the General Division, ; and
e) prepare a written submission summarizing the main points of evidence and arguments. This fills in the gaps in the oral arguments, and becomes part of the “record” for later appeals to the Appeal Division or the Federal Court.

3. Procedure at the Hearing

The General Division generally takes a “common sense” approach rather than a highly legal approach to the proceedings, and is usually interested primarily in the evidence. The claimant’s appearance, attitude, and presentation of facts are all important. An hour spent familiarizing the claimant with procedure and preparing him or her for the types of questions the General Division will ask is usually more valuable than an hour spent mulling over the nuances of the EI Act. That said, the Tribunal will not allow an appeal if they do not believe they have the authority to do so, whatever sympathy they may have for the worker.

Rules of evidence generally do not apply to General Division hearings. An objection on a “technicality” may upset the General Division and jeopardize the claimant’s success. However, the General Division will agree that the hearing is only to decide the questions placed before it and may accept an objection that a question is irrelevant to the issue before the Tribunal. Often decision-makers find that the evidence of a claimant that appears before them is entitled to more weight than the hearsay statement of the employer to an EI agent in a telephone conversation.

In most cases, the hearing will be taped. In the absence of a request to not tape the hearing, the General Division will typically have the hearing taped. The claimant may request to have the hearing taped if the General Division chooses not to. It is strongly advised that every claimant ensure that the hearing be taped, as this provides a record of the evidence, and also shows whether the General Division gave a fair hearing.

4. Evidence at the Hearing

a) Claimant’s Evidence

The claimant should then be asked to tell the General Division his or her version of the relevant facts. The advocate may ask leading questions (requiring a simple “yes” or “no” answer) for all matters not really in dispute, or relate the non-controversial facts directly to the General Division members. However, it is important to let claimants tell crucial facts in their own words. At any point, the General Division itself may ask questions of the claimant or witnesses, or may query parts of the legal argument that it does not understand. A well-prepared claimant can make a good impression if answers are given in a clear, straightforward manner. The claimant should be sure to make eye contact with the General Division members when addressing them.

Ryan v Attorney General of Canada, 2005 FCA 320 is a useful case because the court reconsidered the weight of some claimant evidence. The court contradicted the general line of reasoning that evidence given by a claimant in response to the Commission’s accusations is inherently less believable.

b) Submissions: Disputing the Commission’s Case

Following the presentation of documents, the claimant’s evidence, and any other witnesses, the representative should summarize the facts and evidence in the client’s favour and make legal arguments if applicable. The representative should point out fallacies in the Commission’s argument and distinguish the cases relied upon by the Commission.

c) Payment of Benefit Pending Appeal: Not Recoverable

Benefits are not payable in accordance with a decision of the General Division SST if, within 21 days after the day on which a decision is given, the Commission makes an application for leave to appeal to the Appeal division on the ground that the General Division has erred in law, according to s 80 of the EI Regulations. If benefits are paid to the claimant and the Appeal Division allows the Commission’s appeal, the benefits cannot be recovered. In practice, however, when the Commission appeals it always alleges an error of law, and files within 21 days. This avoids the need to pay benefits while the appeal is pending.

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-If the claimant is unhappy with the decision following the Reconsideration, the claimant may file an appeal to the SST. 	 General information about the Tribunal appeal process can be found at: http://www.canada.ca/en/sst/index.html
+== A. Appeal Docket ==
+The Commission receives and reviews the appeal letter and, unless convinced to reverse its decision by the information contained in it, will set the place and date of appeal and send the claimant and the employer an “Appeal Docket”. The docket contains all documents from the Commission’s  file regarding the claim that it considers relevant to the issue. The docket is given to the claimant, the General Division, and to the employer if the employer asks to participate.
-A comprehensive guide to appeals to the General Division and Appeals Division called “Challenging A Decision About Your Employment Insurance Claim: Reconsideration and the Social Security Tribunal” can be found on the Community Legal Assistance Society website at: http://www.clasbc.net/self_help_guides.
+The docket should be carefully reviewed, as the appeal must meet the Commission’s argument and evidence. The docket includes the “Representations of the Commission to the General Division”, which is basically the Commission’s written argument supporting its decision. Otherwise, the Commission usually does not appear at the hearing.
-== A. General Division ==
+:'''NOTE:''' All adverse decisions should be listed under item no. 2 of the appeal form. There have been cases where claimants who claimed they  were appealing a letter of overpayment without mentioning the penalty imposed in a different letter were told at the hearing that the Referees have no jurisdiction over the penalty by reason of this omission.
-The SST must receive a claimant’s appeal within 30 days of the claimant’s becoming aware (including being told in a phone call) of the Reconsideration decision.  There are two ways to file an appeal:
+== B. Preparation for Appeal to the General Division ==
-#Fill out the Notice of Appeal to the SST General Division – EI form and mail or fax it to the SST.  The form can be filled out on the computer and then printed or printed and filled out by hand.  This form is accessible at the following link: https://www1.canada.ca/en/sst/ei/eiprocess.html.  If the claimant is unable to print the form, the claimant may contact the SST and the Tribunal will send the form to the claimant.
+When reviewing the docket and preparing for the appeal, the claimant and their representative should consider the:
-#Write the SST a letter of appeal containing all the information required in the form.  If the claimant fails to provide all of the information required, the appeal may not be accepted.
+#“Representations of the Commission to the General Division” (this is the Commission’s justification for its decision);
+#evidence relied upon by the Commission; and
+#Umpire decisions or now SST Appeal Division decisions cited by the Commission.
-Upon receiving an incomplete appeal, the Tribunal will send a letter to the applicant asking them to file all missing information within 30 days of the date of the letter.  If the applicant does this, the Tribunal will consider the appeal to have been filed the date of the original incomplete application for the purposes of meeting the deadline to file an appeal.
+The docket contains most of the relevant documents and also summarizes all statements made by the claimant to the Commission, as well as the  Insurance Officer’s decision and comments. Read the docket carefully and be prepared to comment on it.
-Once the SST receives a completed notice of appeal, it will notify Service Canada of your appeal.
+In many cases, the claimant may have to explain that the statement does not accurately reflect what they really intended to say. For example, the claimant did not mean to say that they would only work for $12.50 per hour and no less. Rather, the claimant meant that they would prefer $12.50 per hour, but would work for the going rate. The claimant will have to overcome the SST’s inclination to believe what the claimant said in their statement as opposed to what is being said now, after disentitlement. The claimant must convince the SST of his or her honesty.
-If a claimant submits an appeal form after the 30 days, the claimant can request an extension in the form.  However, the decision is ultimately the Tribunal’s as to whether to grant the extension.
+Under the ''Privacy Act'', R.S, 1985, c. P-21 a claimant has a right to access the entire claim file, whether there is an appeal pending or  not. This may include the documents that are not part of the docket because the Commission did not consider them relevant. If details of the  Commission’s record may be important to the outcome, the advocate should ask for full disclosure of all relevant files.
-When a Notice of Appeal is received, a Tribunal Member will be assigned to the claimant’s file.  The Member will review the file and will dismiss any file which the Member decides has no reasonable chance of success.  The SST will notify the claimant if they are considering summarily dismissing an appeal, and provide the claimant with an opportunity to make additional submissions before the appeal is dismissed.  The application to appeal a dismissal can be found here: https://www1.canada.ca/en/sst/forms/sst-lta-ad-is-e.pdf.
+The jurisprudence on EI includes more than 80,000 decisions of the Umpire, along with perhaps a thousand or so decisions of the Federal Court of Appeal and the Supreme Court of Canada.  Most of these decisions can be found (and searched by key words) on Canlii or the Social Security Tribunal Website at https://www1.canada.ca/en/sst/ad/index.html.  A claimant or representative should always read the cases upon which the Commission is relying.  Often the quoted excerpt is taken out of context, and the facts are so different that the case can be easily distinguished, or even used to support the appeal.
-If the appeal is proceeded with, there are several types of hearings available:
+Any exhibits, cases, or written arguments should be submitted to the General Division ahead of the hearing date, if possible.  This will give the Tribunal a chance to familiarize themselves with the materials, and make more efficient use of the hearing.  The Tribunal will accept new evidence at the hearing, but may adjourn it if the material is lengthy.
-*Written: The Member will ask the claimant questions and request a written response by a certain date
+Service Canada’s EI website contains links to the legislation, the jurisprudence library an index of jurisprudence, as well as the General and Appeal division website.  The website is available at: http://www.servicecanada.gc.ca/eng/sc/ei/index.shtml.
-*Telephone
-*Videoconference
-*In-Person
-The Member will choose the type of hearing to be used.  The Tribunal will telephone or write to the claimant to arrange the hearing.  Following the hearing, the Member will send the claimant a copy of the decision.
+== C. Hearings Before the General Division ==
-=== 1. Discretionary Decisions ===
+=== 1. Claimant’s Preparation ===
-Discretionary decisions such as the Commission’s refusal to extend time, or its decision regarding the length of disqualification, can only be reversed if it is decided that the original decision:
+The claimant should be neat in appearance, be prepared to submit a job search if relevant, and be prepared to present the facts of his or her  situation. The claimant should also be prepared to answer questions directly and clearly.
-*a) ignored or failed to consider a relevant factor, including something the Commission was unaware of, such as health problems or other mitigation;
+In cases where credibility is crucial, claimants may consider preparing a sworn affidavit or statutory declaration of the evidence if the facts are in dispute, since sworn evidence carries greater weight. The affidavit or declaration can also form a useful “record” of the claimant’s case and is especially useful in cases where there are contradictory statements.
-*b) acted on an irrelevant factor;
-*c) committed a jurisdictional error; or
-*d) acted against the principles of natural justice, such as acting with bias or bad faith.
-The issue is whether the Commission’s exercise of discretion in the original decision was reasonable.  However, where the Commission has failed to consider relevant evidence, or where there is new evidence presented for the first time by the claimant, the reviewer can exercise remedial authority by making the decision that should have been made. It is rarely difficult in a deserving case to show that the Commission has disregarded some relevant fact.
+=== 2. Representative’s Preparation ===
-=== 2. Amount of Penalty ===
+The representative should also be neatly dressed, which in the case of LSLAP clinicians means courtroom clothing. The representative should:
-Courts have also determined that the amount of a penalty for making false statements may also be appealed only to the extent that in coming up with the amount of penalty, the Commission committed an error, such that the decision or the decision making process was unreasonable.  That said, as above, one can often find some relevant “fact” that the Commission failed to consider.
+*a) prepare a legal basis to allow the appeal, using the ''EI Act'', ''EI Regulations'', Digest, and jurisprudence;
+*b) spend some time before the hearing with the claimant reviewing facts, explaining legal arguments and anticipating questions;
+*c) meet with witnesses, explain Tribunal procedure, and review with them the questions that will be asked of them at the hearing;
+*d) prepare a written list of points to be made in the claimant’s favour. This is to ensure that if and when “sidetracked” by the General  Division, none of the points will be forgotten. It will also be helpful in “making a record” to give to the General Division, ; and
+*e) prepare a written submission summarizing the main points of evidence and arguments. This fills in the gaps in the oral arguments, and  becomes part of the “record” for later appeals to the Appeal Division or the Federal Court.
-Keep in mind that the decision to apply a penalty can always be appealed.
+=== 3. Procedure at the Hearing ===
-== B. Appeal Division ==
+The General Division generally takes a “common sense” approach rather than a highly legal approach to the proceedings, and is usually interested primarily in the evidence.  The claimant’s appearance, attitude, and presentation of facts are all important.  An hour spent familiarizing the claimant with procedure and preparing him or her for the types of questions the General Division will ask is usually more valuable than an hour spent mulling over the nuances of the EI Act.  That said, the Tribunal will not allow an appeal if they do not believe they have the authority to do so, whatever sympathy they may have for the worker.
-The Appeal Division of the SST must receive a claimant’s appeal within 30 days of the claimant’s receipt of the General Division’s decision.  There are two ways to file an appeal:
+Rules of evidence generally do not apply to General Division hearings.  An objection on a “technicality” may upset the General Division and jeopardize the claimant’s success.  However, the General Division will agree that the hearing is only to decide the questions placed before it and may accept an objection that a question is irrelevant to the issue before the Tribunal.  Often decision-makers find that the evidence of a claimant that appears before them is entitled to more weight than the hearsay statement of the employer to an EI agent in a telephone conversation.
-#Fill out the Notice of Appeal to the SST General Division – EI form and mail or fax it to the SST.  The form can be filled out on the computer and then printed or printed and filled out by hand.  This form is accessible at the following link: https://www1.canada.ca/en/sst/forms/sst-noa-gd-is(2016-10).pdf. If the claimant is unable to print the form, the claimant may contact the SST and the Tribunal will send the form to the claimant.
+In most cases, the hearing will be taped.  In the absence of a request to not tape the hearing, the General Division will typically have the hearing taped.  The claimant may request to have the hearing taped if the General Division chooses not to.  It is '''strongly advised''' that every claimant ensure that the hearing be taped, as this provides a record of the evidence, and also shows whether the General Division gave a fair hearing.
-#Write the SST a letter of appeal containing all the information required in the form.  It is important to ensure that all of the required information is included.
-If a claimant submits an appeal form after the 30 days, the claimant can request an extension in the form.  However, the decision is ultimately the Tribunal’s as to whether to grant the extension.  When a Notice of Appeal is received, a Tribunal Member will be assigned to the claimant’s file to decide whether or not to grant permission to allow the appeal to proceed.  The grounds for appeal to the Appeal Division are:
+=== 4. Evidence at the Hearing ===
-*The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction
+==== a) Claimant’s Evidence ====
-*The General Division erred in law in making its decision
-*The General Division based its decision on an erroneous finding of fact that was made in a perverse or capricious manner or without regard for the evidence before it
-A claimant will be informed in writing if their application for permission to appeal is dismissed.  Permission is not required when appealing a General Division decision to summarily dismiss the appeal.
+The claimant should then be asked to tell the General Division his or her version of the relevant facts. The advocate may ask leading questions (requiring a simple “yes” or “no” answer) for all matters not really in dispute, or relate the non-controversial facts directly to the General  Division members. However, it is important to let claimants tell crucial facts in their own words. At any point, the General Division itself  may ask questions of the claimant or witnesses, or may query parts of the legal argument that it does not understand. A well-prepared claimant   can make a good impression if answers are given in a clear, straightforward manner. The claimant should be sure to make eye contact with the General Division members when addressing them.
-If permission is granted for the appeal, the parties have 45 days to provide submissions.  If no submissions are received, the Member will decide whether  to allow the appeal to proceed based on the documents or submissions on file.
+''Ryan v Attorney General of Canada'', 2005 FCA 320 is a useful case because the court reconsidered the weight of some claimant evidence. The  court contradicted the general line of reasoning that evidence given by a claimant in response to the Commission’s accusations is inherently less believable.
-In some cases the Appeal Division will decide solely on the basis of the written record and submissions, and the Member will decide if a hearing is necessary. The hearing process is the same as the general division
+==== b) Submissions: Disputing the Commission’s Case ====
-Following the hearing, the Member will send the claimant a copy of the decision.  The decisions of the Appeal Division are subject to review under the Federal Courts Act.
+Following the presentation of documents, the claimant’s evidence, and any other witnesses, the representative should summarize the facts and evidence in the client’s favour and make legal arguments if applicable.  The representative should point out fallacies in the Commission’s argument and distinguish the cases relied upon by the Commission.
-== C. Re-opening a Decision ==
+==== c) Payment of Benefit Pending Appeal: Not Recoverable ====
-A claimant can apply to the Commission or the SST to rescind or amend a decision if there are new facts or the decision was made without knowledge of, or was based on a mistake as to, some material fact.  This application can only be made once and must be submitted within one year of the decision.  For more information, use the following link: http://www1.canada.ca/en/sst/ap/eigd-rescind-amend.html.
+Benefits are not payable in accordance with a decision of the General Division SST if, within 21 days after the day on which a decision is given, the Commission makes an application for leave to appeal to the Appeal division on the ground that the General Division has erred in law, according to s 80 of the EI Regulations.  If benefits are paid to the claimant and the Appeal Division allows the Commission’s appeal, the benefits cannot be recovered.  In practice, however, when the Commission appeals it always alleges an error of law, and files within 21 days. This avoids the need to pay benefits while the appeal is pending.
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