SYNOPTIC TABLES

Institutional

• not removable for the duration of its term, except in the event of revocation for cause.
• financial security (Treasury Board).
• functional autonomy (in relation to the Commission).

Individual

• no external pressure on the decision makers.
• deliberations are secret.

BURDEN

• Appellant.
• Shared between the appellant, the Commission or the employer.
• The Commission: shift of the burden in a number of cases.

STANDARD

• Balance of probabilities or preponderance of the evidence.

MEANS OF PROOF

• Testimonies.
• Written documents (various documents, affidavit).
• Material evidence (objects, photos, recordings).
• Presumptions (legal or factual).
• Admissions or confessions.
• Judicial notice (matters of common knowledge, personal knowledge of the board members, experience, etc.).

TYPES OF EVIDENCE

• Direct (direct link between the means and what - has to be proved).
• Indirect or secondary (inference)
• hearsay
• circumstantial evidence
• similar facts.

TYPES OF EVIDENCE

(definitions)

Direct

• The means employed (testimonies, written documents, admissions, etc.) is closely and directly related to the - proof that is sought.

Indirect

• The proof that is sought is inferred from the means employed (testimonies, written documents, objects, etc.).

Hearsay

• What a person reports orally or in writing after having - heard it said or read it.

Circumstantial evidence

• On the basis of indications of time, place and persons, the existence of a fact or the occurrence of an event is inferred.

Similar facts

• Proof of facts or situations that are comparable - to the fact in dispute.

Documentary evidence

• Any document or writing.
• An authentic deed or official public document.
• A writing in the form of an instrument, which relates - a legal act (contract, testament, etc.).
• Affidavit: a sworn statement.
• Other document: any other writing, report or letter.

Testimonial evidence

• A statement by which a person relates the facts of which - he or she has knowledge, or by which an expert gives his - or her opinion.

Admission

• Recognition, by written or oral testimony, of a fact that can have legal consequences for the person responsible for the fact.

Presumption

• Relevant facts that make it possible to infer the existence of the fact in issue through inductive reasoning.
• Presumption of law: created by statute or a common law rule.
• Presumption of fact: inference made from one or more known facts to an unknown fact.
• Absolute presumption: one that is irrefutable, - that cannot be rejected.
• Simple presumption: one that can be refuted by - evidence to the contrary.

Natural evidence

• Evidence that a member of a Board of Referees perceives through his or her own senses or through a document - or witness (noting of the condition of a thing, listening - to a recording).

Judicial knowledge

• The personal knowledge that a member of a board has of - well-known and indisputable facts, personal experience - and expertise.

Admissible evidence

• Evidence that may be admitted under law.

Relevant evidence

• Evidence that relates directly or indirectly to the subject of the dispute, and that can establish or render probable the existence or non-existence of the facts that must be proved.

Probative value

• The weight that the board gives to a piece of evidence intended to convince the board.

APPELLANT - (claimant)

• Special benefits.
• Antedating.
• Refusal of employment: unsuitable employment or just cause.
• Absence from Canada (R. 55).
• Undeclared earnings (R. 15).
• Week of unemployment (A. 9-11; R. 29-32).
• Availability (A. 18).
• Existence of illness or injury.
• Declaration that is false on the face of it, reversal of - the burden of proof.
• Application for review = new facts.

SHARED BURDEN - (claimant and Commission)

• Regular benefits: claimant (A. 49), Commission (A. 9).
• Labour disputes (A. 49, A. 36 (4)).
• Penalties.
• Availability for work.
• Voluntary separation.
• Earnings.

COMMISSION - (and employer)

-Dismissal for misconduct. PROBATIVE VALUE

WRITTEN DOCUMENTS

Authentic deed and public document

• Provides proof of its contents.

Private act

• Act in the form of an instrument (contract): filing with testimony to support it.
• Other documents: filing with testimony to support it.

TESTIMONIALS

Direct witnesses

• Examination and cross-examination.

Indirect witnesses

• Circumstantial evidence.
• Proof of similar facts.
• Hearsay.

PRESUMPTIONS

Presumption of law

• Absolute value.

Presumption of fact

• Relative value: may be refuted by ordinary evidence.

MATERIAL EVIDENCE

• Production of an object, photograph or recording.

JUDICIAL NOTICE

• Matters of common knowledge.
• Personal experience of the decision maker.

LEGISLATIVE RULES - (Federal Interpretation Act)

• The law is always speaking (s. 10).
• The law has a remedial effect (s. 12).
• Can = power; must = duty.
• The masculine may apply to persons of both sexes.
• The singular may include the plural.
• Divergences between the English and French texts; - search the intent of the legislator.

JURISPRUDENTIAL RULES

• Grammatical or literal method: ordinary - meaning of words or phrases.
• Systematic and logical method: search for internal consistency or consistency among various statutes or regulations.
• Teleological method, or method by ultimate purpose - (search for the intention of the legislator).

STRUCTURE

• In writing.
• Facts taken into consideration.
• Evidence accepted.
• Testimonies, documents, presumptions, admissions.
• Evidence to the contrary: credibility.
• Findings:
• findings of law.
• findings of fact.
• Terms of the decision.

REASONS - (mandatory, sufficient, complete, intelligible)

• Essential facts.
• Based on all the evidence.
• Sufficient:
• Analysis of the relationship between the evidence - and the findings.
• Complete:
• All the essential facts.
• Specific relevant criteria according to - the Act and Regulations.
• Questions of credibility.
• Intelligible:
• No contradiction in the statement of the reasons.
• The reason for the findings.