CHAPTER 1
ADMINISTRATIVE JUSTICE AND TRIBUNAL PROCEEDINGS
Employment insurance law is one of the branches of Canadian administrative law whose development has been marked by the contribution of both legal cultures in Canada. It is federal law that is based on the legislation and case law of federal tribunals, but it is applied in a provincial context where there is the influence of both common law and codified civil law. In this study, we have tried to highlight this dual influence, which makes Canadian employment insurance law a good example of biculturalism.
Tribunal proceedings in the field of employment insurance constitute one of the most important branches of the "administration of justice" in the Canadian system of justice from a social and economic point of view. It is also one of the most accessible and most popular in the sense that tens of thousands of litigants take advantage of it every year.1 It is a special branch of administrative proceedings because it involves disputes between a major public agency, the Commission, and various categories of individuals, in particular the unemployed or workers who lose their jobs.
As a rule, employment insurance litigation takes place on three levels, if we exclude the Supreme Court of Canada, which only very rarely becomes involved. At the first level, we find the tribunal proceedings that take place before boards of referees; this level of justice will form the principal subject of our document. At the second level, we find the Umpire, who is also a specialized statutory tribunal presided over by a judge of the Federal Court; as a result, this level of tribunal proceedings displays characteristics that differ from those of boards of referees. At the third level, the Federal Court of Appeal is involved and it deals with an impressive number of cases concerning employment insurance: it is this Court that truly sets the precedents, although these may have generally been developed earlier by the Umpires.
This study is a manual of administrative law intended primarily for boards of referees. It does not deal with employment insurance law as such, that is to say the body of substantive law rules developed under the Employment Insurance Act but rather with the decision-making process governed by the Act, the institutions and the procedure for resolving disputes. It sets out the rules of general administrative law applying to any administrative tribunal supplemented by details concerning the principles and rules that apply more specifically to boards of referees.
We shall set out the sources of general administrative law by referring to the main works on the subject and we shall also consider more general works on procedure and evidence. In addition, we shall comment on the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights, the main statutes and regulations as well as decisions of the Federal Court of Appeal and the Umpire (CUBs).2 Furthermore, we shall refer to the common law applicable throughout Canada except, to a large extent, in the province of Quebec; we shall also refer to the Civil Code of Quebec and the Code of Civil Procedure, which set out the jus commune of Quebec.3
In the first chapter, we shall consider the general characteristics of tribunal proceedings at the institutional and procedural level. In the second chapter we shall examine the hearing before the Board of Referees and the manner in which it proceeds. The third chapter will consider evidence before the board while the fourth chapter will look at the issue of the board's interpretation of the statutes and regulations as a tribunal. Chapter five will deal with the board's deliberations and the decision as such, and it will also look briefly at the issue of review of the board's decision by the Umpire and the Federal Court of Appeal.
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