Human Resources Committee on March 3rd, 2011

[Réal Labarre]

Personally, I've never dealt with joint or collective cases. Usually, when a number of people are involved in the same case at the same time, we submit a joint case, that is to say we take a case and the decision by the board of referees must be rendered in respect of those 30 cases, specifying the individual cases. However, I have not handled any joint cases.

[Bertrand Desrosiers]

In joint cases, we take a case and we know that the scales are the same for each one. The reason is the same for all of them. So we go to court and the decision rendered will be applicable to everyone since it becomes case law for the others. It will automatically apply to everyone because even the commission decides that all those persons may be represented at the same time because the parameters are the same. If 30 or more workers are represented by lawyers, the decision rendered will be applicable to everyone. Obviously, if the decision has been appealed, that applies to all those people.

[Chris Charlton, NDP, Hamilton Mountain, ON]

We've had a number of people going as individuals to the board of referees on the same issue, from the same plant, and they have received different decisions, depending on who was hearing their case.

Let me ask a different question. I know there is a requirement, at least in theory, that three people have to be present for any kind of hearing. How often does it happen, in your experience, that there are only two?

[Guy Martin]

It varies. It's more frequent in some regions. At the biggest office, the one in Montreal, it's very rare. In this specific case, people will often request hearing postponements so that they can be heard by three members. There is quite a sustained frequency of hearings before the board of referees.

In the regions, for example, I've heard of a number of cases in Gaspé and Abitibi in which people agreed to be heard before two persons, or else the hearing date would have been postponed unduly. You don't necessarily get bad results, but that is a contributing factor to reducing the make-up of the panel. Incidentally, and with all due respect for Mr. Komarnicki, I think this is a matter related to the procedure and practices of the board of referees. In a way, the make-up of the panel is an integral part of our ability to have an effective appeal mechanism to achieve the objectives for which it was constituted.

[Chris Charlton, NDP, Hamilton Mountain, ON]

If I'm understanding you right, then not only is it desirable, but it should actually be mandated that three people hear every appeal. How many times does it happen, if only two people are hearing an appeal, that there's actually no unanimity in terms of arriving at a decision? And how much does that prolong the process for an appellant?

[Réal Labarre]

The clerks of the board of referees comply with administrative regulations that provide that, when a hearing is postponed, the case must be set down for hearing within the following 45 days. Frequently, if the claimant is represented, the representative is not always available within that 45-day time period, as a result of which the hearing of the case is delayed a little more and beyond the deadline.

There may also be a problem as a result of a scheduling conflict. Another postponement is then required until, if there are too many scheduling conflicts and the problem is repeated too often, there will simply change regions. They'll ask that the board hearing be held in another region. Depending on the regions, that entails additional costs for the individual's transportation. I'm talking about my region, Trois-Rivières and Drummondville, where we do both. We've previously sat in Shawinigan, beyond Trois-Rivières. There were too many scheduling conflicts and the board hearings had been postponed twice. At one point, we had to demand that a hearing be held in Drummondville. Apart from that, in other cases, it was an employer who appealed the decision. He was from Shawinigan and wanted the board of referees to meet in Drummondville.

For example, when an individual leaves La Tuque because there's no board of referees office in that town, that entails enormous transportation costs for him. It takes him almost an hour and a half or two hours to go to Shawinigan. If he has to go to Drummondville, that's three-quarters of an hour more. So that means more costs for him.

[The Chair, Conservative, Candice Bergen]

Merci.

Thank you so much.

Mr. Komarnicki, six minutes.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Thank you, Madam Chair.

I have a comment on some questions. Certainly, the success percentages at 83%, in my view, are pretty good, but if only one party could appeal, and that's the loser, I would suspect that the percentages would go up. Now, normally both sides of decision can appeal,simply because there could be an error, and you want either side to have that opportunity.

But my first question is, what's the percentage of unanimous decisions that are overturned, if anyone knows? Just for that specific answer to that specific question, what's the percentage of unanimous decisions that are overturned? Does anyone know the answer?

[Bertrand Desrosiers]

The commission could provide you with those figures. We don't have them. When we request them, it rarely provides them to us.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

If you don't know, that's fine. If you do know, tell me.

If you don't, that's fine. We'll go from there. In legal practice, generally when you have a trial there's a pretrial management process, which tries to eliminate a lot of the issues that you've raised: like making sure the counsel is aware, making sure they're available on the date appointed, and making sure there aren't any conflicts of interest.

Is there a pre-appeal management process? If there isn't—I'm speaking to Mr. Martin—might there be some advantage to having a mechanism, or a procedure, or a process that would directly deal with the concerns you've raised?

[Guy Martin]

In the document we submitted to you, it's quite easy if we follow the procedure. That avoids a number of these situations. Similarly, if, before setting a date, they call the representative of record or the lawyer, there's a chance that, if we agree on a date with the government lawyer, he will be available, whereas if they simply send a notice of hearing stating that the meeting has been set for the following week—

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

I appreciate that. Are you agreeing with me that a process can be instituted that would directly address some of the issues you've raised, that could actually resolve most of them?

[Guy Martin]

It doesn't just depend on the board of referees people, particularly the board of referees' clerk. I would say that we have no problems in a number of places.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

As parliamentarians, we can amend laws and regulations and we can pass legislation. Is that something that would be helpful?

[Guy Martin]

I don't think so. I think that's more the responsibility of the administration, of the board organization, but that's part of the practices.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

All right.

So it's not a legislative but an administrative matter that the boards themselves could do if they wanted to? Your answer, Mr. Martin.

[Guy Martin]

Can you repeat your question?

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

You are saying that it doesn't need any legislative fixes, that it's an administrative matter that the board of referees or the clerks could put in place?

[Guy Martin]

That's correct.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Okay.

You also raised the issue of representation. You had some issues about the fact of who could represent someone at the appeal process. Could you clarify what you meant by that, Mr. Martin?

[Guy Martin]

I didn't understand your question.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

You said that workers could be represented by others. I have a note here that you thought the type of person who could represent them at the appeal process should be expanded. That's what I thought you were saying.

Were you saying that or was I misunderstanding you?

[Guy Martin]

No, I said that people were often represented by a lawyer, but that they could also be represented by a person who is not a lawyer. The representatives who are not lawyers do a job that is as valid as, if not better than, that of the lawyers, in some cases.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

So what do you mean by that? What are you saying should be done because of that? What would you do differently or what would you suggest we should recommend to be done differently?

[Guy Martin]

Here's essentially what I wanted to say. If you're represented by a lawyer before a board, are you going to allow the other party, or the administration, to communicate directly with you? No. Normally, you have to respect the fact that there is a lawyer or a representative. All we're raising are examples of cases in which board of referees personnel, that is the person who is the clerk—