Good morning. My name is Guy Martin, and I am coordinator of the CSN's legal department.
First let's talk about the issue of procedure and rules of practice before the Employment Insurance Board of Referees. We have no criticism to make of the procedure as it is established by law or its application in general. Our criticisms focus mainly on administrative practices, of both the staff of the boards of referees and the commission itself, relating to appeals pending before the board of referees.
Subsection 78(2) of the Employment Insurance Act provides that no member of the board of referees may sit in conflict of interest in the case he or she is required to hear. We do not question this. However, the appeal cases before the board of referees are often assigned to board members on the morning of the hearing. Consequently, people who have a connection find out at that time that they cannot sit to hear the case. It may be an employer representative who has a relationship with the employer, or vice versa. Consequently, one of the members cannot sit. In those cases, as the act provides that a board of referees is validly constituted where the chair of the board is present along with one of the members of the board, the claimant is asked whether he or she agrees to proceed before only two members of the board rather than three.
The problem is relatively simple in the big regions where there are a number of boards of referees. Postponement in those cases has no impact on claimants since they can easily be summoned again the following week or the week after that. However, in more remote regions, where there are few members on the boards of referees, this may result in a hearing postponement of several days, several weeks or indeed several months. Significant prejudice can then be caused to claimants wishing to be heard.
Given this choice, which is not really a choice, people often agree to proceed before two board members, which may have quite a significant impact on the decision. Board decisions are rendered by three members. In some cases, a dissenting opinion can be rendered in an appeal case. Often the dissenting view, where there is one, is more substantiated, more supported by evidence and analysis of the docket than the decision itself. Consequently, when claimants are deprived of that opportunity, this may undermine their right to potential benefits where there is dissent on the board of referees.
Measures should be taken to ensure that boards systematically consist of three members. Ideally, they should be assigned earlier to enable members to determine whether they can or cannot proceed in a case and to ensure that other board members can subsequently sit if one of the three members is in conflict of interest. The member in conflict of interest can then be replaced by another. We believe this would be one way of making the process before the board more effective.
The second component concerns the representation of appellants before the board of referees. People may be represented by a lawyer or by a representative who is not a lawyer. In any case, very competent people who are not lawyers represent appellants before the board. However, a problem arises with regard to the respect that is shown by the commission or those surrounding the board of referees' staff.
In some cases, it would preferable to communicate with the designated representative, or the lawyer assigned to the case, before setting the date. That would be quite effective, since it would prevent a number of needless postponements. If there had been communication, the hearing could perhaps have been held one day earlier or one day later, but it would at least have been held. That would be one way to make matters more effective.
In some instances, the hearing is held despite a request for postponement by counsel sent to the board of referees by fax. The board sees that the claimant is not present and renders the decision. This requires everyone to go before the umpire, even if the request for postponement is pending. Once the decision is rendered, it cannot be touched until an appeal is filed with the umpire. The parties then go before the umpire and then back before the board a number of months later because they have not been heard. Ultimately, the outcome of the case is delayed by several months.
Similarly, it occurs that the commission or the clerk of the board of referees contacts the claimant directly without communicating with the claimant's representative or counsel. In our view, this behaviour is unacceptable. There should be no communication without first contacting the person representing an individual.
In one quite revealing example, as a result of an error in the handling of his case, one worker was assessed an overpayment in the context of the closing of a paper mill. The overpayment resulted from an initial bad decision by the commission. The worker's case was awaiting hearing and a lawyer had appeared concerning the matter. An officer of the commission contacted the employee and, unknown to the lawyer, put pressure on him to withdraw his appeal to the board of referees, saying that, if he withdrew the appeal, the amount of the overpayment that he would have to repay would be reduced and everything would be fine. The lawyer then tried to have the matter set down for hearing before the board of referees and learned that the person he was representing had withdrawn. It's incredible.
Two points concerning the communication of appeal dockets and the lack of resources. Appeal dockets are often forwarded to the lawyer one or two days in advance, which makes no sense. This should be done at least one week before the hearing.
In addition, there's often a shortage of resources in certain regions where the people at the board of referees, the clerks, work part time and work in a number of offices. So they share their time. A request for postponement, for example, from a lawyer or representative is consequently left in a voice mail box or sent by fax, but there is no acknowledgement of receipt or any follow-up. This obviously poses a problem. As a result, people may not know exactly what will be happening before the morning of the hearing.