Difference between pages "Appeals to the Social Security Tribunal General Division (8:XIV)" and "Family Violence (3:VIII)"

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== A. Appeal Docket ==
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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. Family Law Act ==


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.  
Under the FLA, a court may issue a family law protection order against a family member in a dispute when there is a likelihood of family violence. Family violence is inclusive of physical, emotional, or psychological abuse. When children are involved, both direct and indirect exposure to violence meet the definition of family violence in s 1 of the Act.  


:'''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.  
Applications for a protection order can be made alongside applications for other family court orders or on their own. The involvement of the criminal justice system is not required. Applications can be made in both Provincial Court and Supreme Court.  


== B. Preparation for Appeal to the General Division ==
There is no cost to apply for a protection order in BC Provincial Court. If you are seeking a divorce, you may apply for a protection order at the BC Supreme Court for a fee ($80 for divorce proceedings that have begun, and $200 if not). It is possible to obtain an order to waive fees at the Supreme Court. The Legal Services Society publication “For Your Protection” outlines the process and the forms required to seek a protection order. https://familylaw.lss.bc.ca/publications/your-protection


When reviewing the docket and preparing for the appeal, the claimant and their representative should consider the:
Before issuing a protection order, courts will consider the history of family violence, the nature of that violence, the present relationship between the at-risk family member and the violent family member, and circumstances which increase the risk of violence or the vulnerability of the at-risk family member (s 184(1)).  
#“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.
Protection orders may prohibit direct or indirect communication, attending locations frequently entered by the at-risk family member, and possessing a weapon (see s 18(3) for additional prohibitions). Unless the court establishes otherwise, an order will expire one year after the date it is issued.  


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.
== A. Divorce Act ==


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.  
Effective March 1, 2021, the amended Divorce Act includes provisions for identifying family violence and assessing its relevance to family disputes.


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.  
Family violence is conduct by one family member which causes another family member to fear for the safety of themselves or another person. The amended DA characterizes this as threatening or violent behaviour, or a pattern of coercive or controlling behaviour (see s 2(1) of the amended DA for the definition of family violence and a list of conduct which meets this definition). These behaviours need not be criminal offences, nor are they required to meet the threshold for proof in criminal law to qualify as family violence under the updated DA. If a child is exposed to direct or indirect violence, this is considered family violence and possibly child abuse.


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.
Under the amended Divorce Act, family violence is a factor under consideration in establishing parenting and contact arrangements for children (s 16(3)(j) of the amended DA). Courts may consider family violence grounds to modify or waive notice requirements for changes in residence (s 16.96(3)). Family violence will also be a factor in determining whether family dispute resolution would be inappropriate (s 7.7(2) of the amended DA).
 
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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Revision as of 21:38, 25 August 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 12, 2021.
LSLAP Manual
LSLAP Manual
This page is from the
Law Students' Legal
Advice Program Manual.
See the full contents.
LSLAP Manual
Introduction
Chapters
3. Family Law
 · I. Introduction

 · II. Governing Legislation and Resources
 · III. Marriage
 · IV. Divorce
 · V. Uncontested Divorce
 · VI. Simple Divorce Procedure
 · VII. Alternatives to Divorce
 · VIII. Family Violence
 · IX. Assets
 · X. Spousal and Child Support
 · XI. Parenting Orders/Guardianship/Contact
 · XII. Children and the Law
 · XIII. Adoption
 · XIV. Name Changes
 · XV. Court Procedures

 · Appendix A: Glossary
v • d • e




v • d • e
 
Chapters 1-7
Criminal Law  · Youth Justice  · Family Law  · Victims  · Public Complaints · Human Rights  · Workers Compensation
Chapter One:
Criminal Law
Chapter Two:
Youth Justice
Chapter Three:
Family Law
Chapter Four:
Victims
Chapter Five:
Public Complaints
Chapter Six:
Human Rights
Chapter Seven:
Workers' Compensation
I. Introduction · II. Governing Legislation, Policy & Guidelines · III. Introduction to Compensation Claims for Injured Workers · IV. LSLAP's Role at the Initial Decision Level · V. Limitation Periods and Timing of Decisions · VI. Making a Claim · VII. The Claim Acceptance Process · VIII. Worker Status · IX. Disability and Causation · X. Time Limits and Procedures · XI. Claim Benefits · XII. Appeals · XIII. Health and Safety Regulations in the Workplace · XIV. Assessments of Employers · XV. The WCB Fair Practices Officer · Appendix A: Abbreviations · Appendix B: List of Cases · Appendix C: Referrals · Appendix D: Resources · Appendix E: Claims Process · Appendix F: Checklist for Interviews · Appendix G: Checklist for Appeals · Appendix H: Sample Authorization Form
© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.


A. Family Law Act

Under the FLA, a court may issue a family law protection order against a family member in a dispute when there is a likelihood of family violence. Family violence is inclusive of physical, emotional, or psychological abuse. When children are involved, both direct and indirect exposure to violence meet the definition of family violence in s 1 of the Act.

Applications for a protection order can be made alongside applications for other family court orders or on their own. The involvement of the criminal justice system is not required. Applications can be made in both Provincial Court and Supreme Court.

There is no cost to apply for a protection order in BC Provincial Court. If you are seeking a divorce, you may apply for a protection order at the BC Supreme Court for a fee ($80 for divorce proceedings that have begun, and $200 if not). It is possible to obtain an order to waive fees at the Supreme Court. The Legal Services Society publication “For Your Protection” outlines the process and the forms required to seek a protection order. https://familylaw.lss.bc.ca/publications/your-protection

Before issuing a protection order, courts will consider the history of family violence, the nature of that violence, the present relationship between the at-risk family member and the violent family member, and circumstances which increase the risk of violence or the vulnerability of the at-risk family member (s 184(1)).

Protection orders may prohibit direct or indirect communication, attending locations frequently entered by the at-risk family member, and possessing a weapon (see s 18(3) for additional prohibitions). Unless the court establishes otherwise, an order will expire one year after the date it is issued.

A. Divorce Act

Effective March 1, 2021, the amended Divorce Act includes provisions for identifying family violence and assessing its relevance to family disputes.

Family violence is conduct by one family member which causes another family member to fear for the safety of themselves or another person. The amended DA characterizes this as threatening or violent behaviour, or a pattern of coercive or controlling behaviour (see s 2(1) of the amended DA for the definition of family violence and a list of conduct which meets this definition). These behaviours need not be criminal offences, nor are they required to meet the threshold for proof in criminal law to qualify as family violence under the updated DA. If a child is exposed to direct or indirect violence, this is considered family violence and possibly child abuse.

Under the amended Divorce Act, family violence is a factor under consideration in establishing parenting and contact arrangements for children (s 16(3)(j) of the amended DA). Courts may consider family violence grounds to modify or waive notice requirements for changes in residence (s 16.96(3)). Family violence will also be a factor in determining whether family dispute resolution would be inappropriate (s 7.7(2) of the amended DA).

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