Office of the Umpire : - UI Appeal System
An appeal system is a mechanism for the review of administrative decisions. Adjudication is the process by which decisions are taken by an agent of the Canada Employment and Immigration Commission (CEIC) with respect to a claimant's application for Unemployment Insurance benefits. Under sections 53 (3) and 53 (4) of the UI Act, the agent is required to examine without delay any applications for benefit that is received, to make a decision and to notify the claimant. The decision, if negative, should show how a particular criterion of entitlement or grounds for disqualification are applicable to the claimant's own situation and should normally specify which sections of the Act or Regulation the decision was based on. Administrative procedures also exist to ensure the continuance of the conditions that enabled the claimant to establish initial eligibility for benefits; and a claimant who fails to meet these conditions may be disqualified or disentitled to benefits. The importance of the adjudication process is clear when one realizes that every year, some 4 million unemployment insurance claims are initiated and/or renewed, and approximately 1.4 million disentitlements/disqualifications are imposed on the claimants. These negative decisions are the ones most likely to be contested by claimants.
Unemployment Insurance law allows for both an internal review by the originator of the decision, as well as contentious review before a third party.
A claimant who is dissatisfied with an administrative decision may request the CEIC to reconsider the decision. Also, under section 102, the CEIC must review the decision in light of any new facts presented by the claimant. Reconsideration is not a formal part of the appeal system, however it does play a significant role in the review and modification of administrative decisions and will be examined as part of the evaluation.
The appeal system (or the process of contentious review) is a mechanism for reviewing administrative decisions related to the Unemployment Insurance program. It is open to claimants, their employers and the CEIC to reverse decisions that they consider erroneous. Contentious review involves a confrontation between the claims of a member of the public and the decision of an administrative authority before a third party. Deciding whether an insured person is entitled to benefit is a critical administrative function and the appeal system may, therefore, be regarded as a mechanism to review the legality of this decision. It allows the legal validity of the decision to be verified by an impartial referee.The Unemployment Insurance Act provides for two levels of contentious review. This system has survived over the past forty-five years with very few legislative amendments. The first Unemployment Insurance Act (1940) established two levels of appeal. A claimant, whose claim for benefit had been refused by an insurance officer had the right to appeal the decision to a Court of Referees (now called Board of Referees) - a three member board reflecting the tripartite nature of the program's financing by the government, by employers and by employees. Approximately 18,000 cases are referred to and heard by the Board of Referees each year; their role is limited to the settling of the dispute set before them. On certain conditions, a second appeal could be files with an Umpire. The system remained virtually unchanged until May 1980, when the right of appeal to the Umpire was broadened for an insured person and his/her employer. Prior to this date, the right of appeal to the Umpire of the claimant or the immediate employer was limited and contingent upon the granting of permission to appeal by the chairperson of the Board of Referees unless there was a minority decision of the Board. The CEIC, as well as associations of workers and employers enjoyed an absolute right of appeal to the Umpire. The system is now more equitable since all applicants have the same right of appeal to the Umpire. The number of cases referred to the Umpire has grown steadily over the past few years, with some one thousand decisions now being handed down each year. Jurisprudence or case law with respect to Unemployment Insurance is established at this level, and this, in turn, impacts on the adjudication process within the CEIC.
Under the common-law powers of judicial review, the Federal Court has been granted the power to review the legality of decision taken by administrative tribunals or the decisions of lower courts. Both the claimant and the CEIC have access to this recourse. Major litigation issues are often clarified at this level.
The objective of the appeal system is implicit in its organization and function - that is to provide recourse against the decisions of administrative authorities. It is one of the safeguards required for the interest of the individual with regard to administrative action. The Law Reform Commission of Canada outlined the criteria for an acceptable appeal system. The recourse must be readily accessible and entail a minimum of formality. The organization and the operation of the system must also provide guarantees of impartiality and technical competence and ensure quality decisions.
Board of Referees
The Board of Referees is an administrative tribunal which has jurisdiction over UI litigation. Section 91 (2) of the UI Act provides for the appointment of chairpersons of Boards of Referees by the Governor on Council. The appointment is for a term of 3 years, subject to renewal. Section 91 (3) of the UI Act provides for the establishment of panels composed of employers (or their representatives) and insured workers (or their representatives). The Commissioner of Employers and the Commissioner of Workers established the panels from a list of names submitted by employer and worker organizations. Under section 62 (1) of the Regulations, it is the CEIC that determines the duration of their mandate. Their appointment has been set for a term of three years, subject to renewal. The Board is not permanent but is freshly constituted each time there is a session. Boards are established at centers where the monthly average of appeals warrants it; the Regional Director, Benefits Program, make this decision. Rotation of chairman and board members is constant. Training is provided for chairpersons and members of the board by the CEIC.
The appeal docket prepared for the Board of Referees hearing contains a full narrative description of the facts surrounding the claim, with photocopies of all relevant documents from the claimant's file attached (correspondence, statements made by the claimant, statements made by third parties that may be relevant to the case, Record of Employment, application for benefit and notice of appeal, etc.). The submission, prepared by the CEC officer who made the original decision, is the principal document in the appeal docket. It is a synopsis of the facts relating to the claim, accompanied by a summary of the point on which the decision is disputed. The officer normally cites the specific sections of the UI Act and Regulations on which the decision is based as well as relevant jurisprudence (know as CUB's). The subject of the litigation is summarized concisely in the form of questions addressed to the Board of Referees. The appellant, his/her representative and the Board of Referees will each receive a copy of the docket. The appellant may correct or amend the submission if he feels it contains any errors. In summary, the appeal docket appears to be an excellent tool to provide a synopsis of the situation and the CEIC's position in the matter under litigation to all interested parties. It is not, however the mechanism through which the claimant's position in the dispute is presented. The claimant must ensure that his version of the facts be submitted either in writing or verbally during the hearing.
Umpire
The umpire is the second level of review in the UI appeal system. It is open to the claimant, the employer, unions and the CEIC to contest a decision taken by the Board of Referees. The appellant must file a written notice stating the grounds for the appeal. There are only three grounds for an appeal to an Umpire :
'An appeal lies as of right to an Umpire in the manner prescribed from any decision or order of a board of referees at the instance of the Commission, a claimant, an employer or an association of which the claimant or employer is a member, on the grounds that
(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) the board or referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
© the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse and capricious manner or without regard for the material before it." (Section 95, UI ACT, 1976-77, c. 54, p. 56)
The Governor in Council appoints from among the judges of the Federal Court of Canada, such numbers of Umpires as is considered necessary for the purposes of the Act. Under section 92 (3) and (4) of the UI Act, the Umpire is an itinerant tribunal who generally sits alone. The Umpire is under the supervision of the Chief Umpire, who is the Associate Chief Justice of the Federal Court and President of its Trial Division. A hearing is heard by more than one Umpire, presided over by the Chief Umpire feels the matter is of significant importance.
The CEIC is responsible for the administration of the Office of the Umpire. Although the Office comes under the supervision of the Chief Umpire, its staff is, for administrative and funding purposes, part of the CEIC. The Office of the Umpire is responsible for receiving appeals consolidating files, making the physical preparations for the sessions, authenticating the tribunal's documents and maintaining its files.
A notice of appeal to the Umpire must be in writing and contain a statement of the grounds for appeal, which must meet the requirements of Section 95 of the UI Act. The notice must be filed within 60 days of the day the decision of the Board of Referees is communicated to the appellant. The appeal by a claimant, employer or union, must be filed at the local CEIC office, whereas the CEIC files its appeal directly with the office of the Umpire.
An appeal docket is prepared by the CEIC. It usually consists of
- the CEIC's observations and representations
- the observations and representations of interested parties, and
- the litigation documents (section 68 03) UI regulations).
The last-mentioned is the only essential document; interested parties may submit observations but are not required to under existing regulations.
Preparations for the hearing are made by the Registrar of the Umpire, including preparing the file and making the necessary arrangements for the hearing. The Registrar must take into account in setting up hearings of the Umpires, their obligations as Federal Court judges and the fact that the appeal must be heard in the official language of the claimant's choice. Interested parties are given fourteen days notice of the place and date of the hearing.
The Umpire decides at the conclusion of the examination, providing a written decision, a copy of which is sent to the appellant, the CEIC or other interested parties. The Umpire may uphold, rescind or amend the decision of the Board of Referees or send the case back to the Board for re-hearing.
The decision of the Umpire is final and is not subject to appeal or to review by any Court except in accordance with the Federal Court Act. The impact of the Umpire's decision is not merely to settle the dispute before him; decisions of the Umpire have been regarded as a source of case law ever since the early days of unemployment insurance.
(Program Evaluation Bulletin, Bulletin Évaluation des programmes, Evaluation of the UI Appeal System, Govt CA1 MMH SP1010 83A69 c.2)
- Evaluation of the UI Appeal System. Program Evaluation Branch, Strategic Policy and Planning, 1985, Hélène G. Boyer.
Records in the proceedings should be kept for all Board hearings, not just in cases involving labour problems. These would be transcribed only when required for an Umpire hearing.
Hearings before the Umpire are public. The impact of the Umpires decision is not merely to settle the dispute before him; decisions of the Umpire have been regarded as a source of case law ever since the early days of UI.
Not all their decisions have an impact on case law; the Chief Umpire estimated that only 25 % of all decisions can be considered jurisprudence.
Decisions of the Umpire are not only recorded, but they may be published, either in full or in summary, if the UIC considers it appropriate. Unlike the reports of the Supreme Court and the Federal Court, this publication (CUB report) is not only issued by the Tribunal itself but by the UIC, which also assumes part of the cost of both translating and publishing these.
