APPEALS TO THE UMPIRE
Umpire appeal hearings are open to the public. Umpire decisions create case law (jurisprudence) and are a matter of public record. All these decisions are available on the internet for reference by Boards of Referees and to assist appellants and their representatives with their appeals.
Who is the Umpire?
Umpires are generally judges of the Trial Division of the Federal Court of Canada. In certain cases, judges or former judges of a superior, county, or district court may sit as Umpires.
The role of the Umpire is to review the Board's decision to make sure that:
- The Board of Referees gave you an impartial hearing or a reasonable opportunity to present your case or operated within the limits of its jurisdiction; This generally means that the Board let you present your case and heard you.
- The Board operated within the limits of its jurisdiction means that the Board had the authority to decide your case.
- The Board did not err in law in making its decision means that the decision of the Board of Referees is in accordance with the EI Act and Regulations.
- The Board did not base its decision on a misinterpretation of the facts means that the Board looked at, understood and took into consideration all the evidence submitted.
The Umpire can either change the decision of the Board of Referees or return the appeal to the Board of Referees for a new hearing.
You cannot present new facts before the Umpire unless you prove that these facts could not be discovered before the appeal to the Board of Referees.
How do I file an appeal to the Umpire?
If the decision is not in your favour
If the Board's decision is not in your favour and you want to appeal to the Umpire, you must tell your local HRSDC office in writing that you want to appeal the Board's decision.
- You have 60 days after you receive the Board of Referees' decision to do this.
Please make sure that all information on the form is complete and remember to date it, sign it and send to your
local HRCC office.
If the decision is in your favour
If the Board's decision is in your favour, HRSDC or your employer (if involved) can file an appeal.
- HRSDC or your employer has 60 days to appeal.
If the Board's decision grants you benefits, and HRSDC decides to file an appeal to the Umpire, you will not receive any payments until the matter is resolved. HRSDC will notify you if and when an appeal is filed.
An appeal to the Umpire by any party (you, HRSDC or your employer) has to prove that:
- The Board of Referees did not give you an impartial hearing or a reasonable opportunity to present your case or did not operate within the limits of its jurisdiction.
- The Board erred in law in making its decision.
- The Board based its decision on a misinterpretation of the facts.
If an appeal is filed at the Umpire level, all interested parties will receive an appeal docket, usually within 60 days. This docket contains all the documents that were originally presented to the Board of Referees and the Board's decision. If HRSDC appeals, you will receive written reasons explaining why HRSDC has decided to appeal to the Umpire. Also included will be any other court decisions that HRSDC is using to appeal the Board's decision.
Unlike the Board of Referees, Umpire hearings are usually held in a courtroom. However, these hearings are kept as informal as possible. However, as HRSDC considers this level of appeal to be a formal judicial process, it is always represented by a lawyer.
You may decide to have a representative assist you (i.e. a friend, union representative, community legal representative or lawyer). If you hire a representative, it will be at your own expense. HRSDC will not reimburse the fees.
The Office of the Umpire will tell you when and where your appeal will be heard. These hearings are held in a location best suited both for the person or organization making the appeal and for the Umpire overseeing the hearing. It will not always be possible, however, to hold the hearing in your home town.
The Umpire can review only the evidence that was presented to the Board of Referees and the Board's decision. You cannot present any new evidence or testimony at this stage unless you can show that you were unable to do it for the Board at the time of your hearing.
On the day of the hearing, you should arrive at least 30 minutes before it is scheduled to begin. You will be told about what to expect during a hearing.
Please remember that because the Umpire hears many cases on the same day, you should be prepared to wait your turn to be heard.
Why is my attendance at the hearing important?
It is in your best interest to be there in person before the Umpire so that you may give your explanation to the Umpire as to why you think the Board of Referees made a mistake when it made its decision, if this decision was not favorable to you.
If, on the contrary, HRSDC or your employer is the appellant before the Umpire as a result of a decision favorable to you, then again, it is in your best interest to be there in person so that you may explain to the Umpire why you think that the Board of Referees did not make a mistake when it made its decision.
Being present will also allow you to answer any questions the Umpire might have about your situation.
If you or your representative cannot attend the hearing, you should immediately contact the Registrar of the Office of the Umpire to make other arrangements, or you can request that your case be decided "on the record." This means that a decision will be made by the judge without you having to attend the hearing. In that case, HRSDC will also not appear in front of the judge.
Unlike Board of Referee hearings, Umpire hearings cannot be held over the telephone.
What does the Umpire expect from me?
The Umpire expects you to be on time and prepared to discuss your case.
If you are appealing a decision from a Board of Referees, the Umpire will expect you to explain why:
- The Board of Referees did not give you an impartial hearing or a reasonable opportunity to present your case, or did not operate within the limits of its jurisdiction.
- The Board erred in law in making its decision.
- The Board based its decision on a misinterpretation of the facts.
Be sure you have your appeal docket with you and have reviewed it carefully so that you can discuss the decision taken by the Board of Referees.
If you do not speak either English or French, you should bring somebody with you who can interpret. You will be responsible for any expense fees involved. If you have a hearing or a visual impairment, HRSDC will pay for either a sign language interpreter or for your docket to be sent to you in Braille. Let HRSDC know if these arrangements need to be made.
- Understand the powers and the limits of the Umpire's authority.
- Read the appeal docket sent to you and make sure you are familiar with it. It is your copy and you can make notes on it.
- Make a checklist of the facts or of previous appealed cases that you want to be sure to present to the Umpire.
- You can research court decisions that may be relevant to your appeal. We have prepared some information on previous appeal cases that will be helpful to you.
- You can also get help from community and claimant help groups which know all about the EI Act.
- Don't forget that, normally, any new evidence or testimony cannot be presented to the Umpire because the proper place to do this is in front of the Board of Referees. However, if you can show the Umpire that you were unable to present it to the Board of Referees at the time of your hearing, the Umpire may accept it.
What happens after the hearing?
You will receive a written decision containing the reasoning of the Umpire once a decision has been made in your case.
This decision will be translated into Canada's other official language and then be made available on this site as EI jurisprudence for reference by the Board of Referees and individuals who file an appeal to the Umpire.
An Umpire judgment is referred to as a "CUB", Canadian Umpire - Benefit, and is numbered. An Umpire decision (CUB) contains the name of the claimant, the name of the appellant, the dates and locations of the Board of Referees and Umpire hearings, the decision under appeal with the related facts and circumstances and the Umpire's judgment in the case.
Usually the decisions of the Umpire are final, but there are some situations which can be reviewed by the Federal Court of Canada. There are certain fees that are involved in appeals at the Federal Court level.
For more information on this appeal level, please consult the
Additional tools
There are additional sites you can consult if you wish to conduct further research. These are:
Canadian Human Rights Commission
Provincial Ministries of Justice and Attorney Generals offices
Information is available on the Board of Referees appeal process