CHAPTER 5
DELIBERATIONS AND DECISION
Once the hearing is closed, the Board must take the matter under advisement (consideration) and render a decision.
5.1 Deliberations
There is no reference to the deliberations in the statute law. During this stage, courts or tribunals consider the evidence, establish their reasoning and prepare a decision. If the tribunal has several members, it is assumed the members will consult or discuss the matter with each other. Section 83(2) of the EI Regulations implicitly refers to this consultation by providing that the reasons for a dissenting member's disagreement must be recorded in the minutes of the proceedings.
Neither the EI Act nor the Regulations establish a time period for deliberations or a time limit within which a decision must be rendered. The deliberations of boards of referees are generally very short. In administrative law, deliberations are secret or confidential.588
Certain enactments, such as art. 463 of the Code of Civil Procedure in Quebec, state that a judge who has taken a case under advisement may, even of his own motion, by a judgment giving reasons, order the reopening of the hearing, for such purposes and on such conditions as he or she may determine. This is certainly possible under administrative law, since tribunals are in charge of procedure. The cases suggest tribunals have the discretion to reopen the inquiry or hearing especially if one of the parties is requesting this measure to bring important facts to the tribunal's attention.589 The chairperson may reopen the hearing even if the evidence could have been led at the hearing.
Furthermore, while the case is under advisement, the chairperson may exercise his or her power to refer a question to the Commission for investigation and report pursuant to s. 82 of the EI Regulations. This means that upon receiving the report, the chairperson must reopen the hearing so that the parties may obtain the report and address it.
Subject to s. 82 of the EI Regulations, the deliberations must be secret. This rule is related to the principle of impartiality - one of the components of natural justice. It has been reaffirmed in two recent Supreme Court judgments that stand for the proposition that the independence of tribunal members depends on it. The members' deliberations must be conducted behind closed doors, and under no circumstances may the members communicate with any of the parties or anyone else other than each other, or accept any evidence if it is not or cannot be made part of the docket. They must be as discreet as possible with regard to the facts in issue. Naturally, neither the clerk nor the Commission officers may be privy to the deliberations.
This raises the issue of the technical or legal support or assistance that an administrative tribunal may benefit from insofar as its decision making is concerned. There is recent case law on this point and it applies to all tribunals, especially tribunals whose members are not lawyers.
In Tremblay, the Supreme Court considered an established practice pursuant to which draft decisions are sent on to the tribunal's legal counsel for verification and consultation.590 The Court appears to find this practice acceptable. The practice it considered repugnant to natural justice was the "consensus table" process set up by the commissioners, to the extent that it was mandatory or compulsory.591 Mr. Justice Monet was the only Justice of the Quebec Court of Appeal who expressly rejected the idea that the commissioners' consultations with legal services create systemic pressure.
In Khan,592 a case decided in 1992, the Ontario Court of Appeal had to consider the precise question of the role of counsel for a professional discipline tribunal. An adviser had been closely involved with the decision but the members ultimately reviewed, adopted and signed it. Expressly citing the Supreme Court decision in Tremblay, the Court held this involvement does not run contrary to natural justice, provided no coercion is involved. After referring to the fact that the lawyers' consultations and involvement were freely given and received, the Court wrote:
The drafting process followed by the Committee maintained the responsibility of authorship with the Committee and avoided any inference that counsel had co-opted or had delegated to him the reason-writing function. In that regard, the following features of the process are significant, although none are determinative:
(i) A Committee member prepared the first draft of the reasons.
(ii) Counsel, with the chairman of the Committee, revised and clarified the first draft but did not write independently of that draft.
(iii) The Committee met to consider and revise the draft as amended by counsel and the chairman; counsel played no role in this review and revision.
(iv) The final product which emerged from the drafting process was signed by each member of the Committee.593
The Ontario Court of Appeal has also held that legal counsel may help quasi-judicial bodies draft decisions consistently with natural justice. Given the very broad spectrum of decision making, this assistance may be given in more than one fashion, but there are limits. To determine whether the involvement of counsel in the decision-making process compromises "the fairness of the proceedings or the integrity of the process," one must consider "the nature of the proceedings, the issues raised in those proceedings, the composition of the tribunal, the terms of the enabling legislation, the support structure available to the tribunal, the tribunal, the tribunal's workload and other factors."594 The Court seems to have held that the way in which legal counsel is involved is unimportant provided the decision remains that of the tribunal. According to a 1988 divisional court judgment, this was also the crucial issue where a secretary to a disciplinary committee clerk wrote the decision.595
In a recent decision, the New Brunswick Court of Appeal was much more restrictive, holding that a legal counsel who was acting as a prosecutor before a disciplinary tribunal cannot assist the tribunal in preparing the reasons for its decision.596 The Court's reasoning was based on two older Ontario cases. In one of the cases, which involved the Ontario Racing Commission, the Ontario Court of Appeal held that since the Commission counsel had acted as a prosecutor, the counsel should not have participated in drafting the decision - a role which improperly involved counsel "in the Commission's function."597 It should be noted that the Court considered the role of Commission's counsel to be similar to that of a party in a lis inter partes: the counsel was also acting as a prosecuting lawyer.
In September 1993 and again in February 1994, the Federal Court examined the role of administrative tribunal legal advisers in great detail.598 It allowed a tribunal to have a process whereby legal advisers review drafts of decisions. Tribunal members may submit their drafts and ask for the advice of legal advisers on any issue, and the advisers may have access to the entire docket and point out problems such as errors in law, inconsistent facts in the docket and divergent cases. Such a process may be abused, but it does not per se run contrary to natural justice.
In Burke, where the decision maker had consulted with other Commission staff and federal government counsel, the Court applied the Federal Court of Appeal's decision in Weerasinge. The Court held that an internal consultation process, established to ensure consistency in decision making and in compliance with legal requirements, may be in keeping with the principles which preclude delegation of authority and require a measure of natural justice and fairness.599
Clearly the chairperson and members of the Board of Referees cannot consult the Director or other Commission management officials, since the Commission is a party before the board. May they consult another unit that has legal advisers? The advisers would have to be independent of the people who prepared the Commission's submissions to the board and of the people who represented the Commission.
During the deliberations, which in principle are secret, the chairperson and the members of an administrative tribunal do not have to contact the representatives of the parties or the experts. 600
Chapter 13 of the Benefit Manual reiterates what should normally happen during the deliberations. The chairperson should recapitulate the issues in the appeal. He or she should note what had to be proven, identifying the parties' oral and written submissions that are to be regarded as fact. He or she should suggest a reasoning or argument based on the preponderance of evidence and having regard to the provisions of the EI Act, the Regulations and the relevant case law. Where necessary, he or she should note the probative value of the items of evidence submitted. Once this has been done, the members must confer with the chairperson on those issues. Finally, if a consensus is reached, the chairperson must propose findings, and the board members must confer with the chairperson on those findings.
If one of the two members or the chairperson intends to exercise his or her right to dissent, that person must inform his or her colleagues during the deliberations.
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