Appeals to the Social Security Tribunal General Division (8:XIV)

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 his or her representative should consider the:

1. “Representations of the Commission to the General Division” (this is the Commission’s justification for its decision);
2. evidence relied upon by the Commission; and
3. CUBs (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 he or she really intended to say. For example, the claimant did not mean to say that he or she would only work for $12.50 per hour and no less. Rather, the claimant meant that he or she 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 his or her 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 the Commission’s jurisprudence website. 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 and index of jurisprudence, as well as to the General and Appeal division websites.

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” 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 hearingis 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 toanEI agent ina telephone conversation.

The claimant can ask to have the hearing taped. In the absence of such a request, the General Division will use its discretion asto whether to record the hearing or not. In most cases, the hearing will be taped. Itisstrongly advised that every claimant request 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, itisimportant 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