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Difference between revisions of "Appeals to the Social Security Tribunal General Division (8:XIV)"
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Appeals to the Social Security Tribunal General Division (8:XIV) (view source)
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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. | 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 | 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 their 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. | 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 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. | 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. | ||
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=== 1. Claimant’s Preparation === | === 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 | The claimant should be neat in appearance, be prepared to submit a job search if relevant, and be prepared to present the facts of their 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. | 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. | ||
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=== 3. Procedure at the Hearing === | === 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 | 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 the procedure and preparing them 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. | 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. | ||
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==== a) Claimant’s Evidence ==== | ==== a) Claimant’s Evidence ==== | ||
The claimant should then be asked to tell the General Division | The claimant should then be asked to tell the General Division their 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. | ''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. | ||