10. Attending the hearing

General information

The following persons have the right to attend the hearing:

• the claimant;
• the employer;
• other persons who are appealing a Commission decision;
• any representative of the claimant, employer or other person;
• any officer designated by the Commission;
• any legal representative of the Commission;
• any other person likely to be affected by the decision (in representative appeals where one decision applies to many appeals); and
• any other person who assists the appellant (i.e., a friend, a family member or an interpreter).

At the discretion of the chairperson, a witness may be called to be heard by the Board.

Before admitting any persons to the hearing room and introducing them to the Board, the Board Assistant greets individuals appearing before the hearing and asks for two pieces of identification. The Board Assistant then ascertains the names and addresses of the persons and in what capacity they are appearing before the Board (claimant, claimant's representative, witness, employer). This practice prevents any cases of mistaken identity and confirms who attended the hearing, their roles and addresses.

10.1 Attendance of the claimant or employer

When claimants, employers or their representatives appear at the hearing, the Board must hear any representations and any evidence submitted. If the notice of hearing did not provide enough time to submit written representations or otherwise to prepare a case, the Board may, under subsection 83(1) of the Regulations, grant an adjournment to allow more time to prepare and submit such representations before the case is decided.

The chairperson should request that the appellant or other witnesses attend if their presence would help to determine the facts. For example, the presence of the claimant, employer or other witnesses might help to clarify a difference of opinion about alleged misconduct or voluntary leaving, or situations in which contradictory statements are not satisfactorily explained. The hearing could then be adjourned and the notices of request issued for a rescheduled hearing at a later date.

When the chairperson issues a notice of request to attend a hearing, the Commission is authorized to pay the allowances and traveling expenses of the person appearing before the Board, in accordance with Treasury Board guidelines. The request to attend the hearing is not binding, i.e., there are no penalties for not attending or complying with the chairperson's request.

10.2 Attendance of the Commission

The Commission is a party to all appeals and has equal but no greater rights than any other interested party. The Commission does not normally exercise its right to attend, preferring to make its arguments in writing to the Board. In cases involving complex issues and labour disputes, the Commission may attend the hearing and make representations.

If the chairperson believes that the attendance of a Commission employee might be beneficial, the Board Assistant will make arrangements to issue a request to attend the hearing.

Except during the appeal hearing, Commission officers cannot discuss cases with the Board or any of its members. Under no circumstances does any Commission officer or the Board Assistant remain in the room while the Board is deciding a case, nor is the officer or Board Assistant contacted for further clarification after the other parties have left.

10.3 Board of Referees quorum

Subsection 111(1) of the EI Act provides that a Board of Referees consists of three persons: a chairperson and two members. Subsection 78(3) of the Regulations provides that a Board can sit even though it is constituted of only two persons. To have a quorum, the chairperson and one member must be present, and the appellant must consent in writing.

When one member is absent, it is the responsibility of the Board of Referees Assistant to endeavour to find a replacement immediately. If no replacement can be found, the parties interested in the appeal must give their consent in writing that the case be heard with a two-person Board (subsection 78(3) of the Regulations). Should one of the parties object, the hearing cannot proceed and must be adjourned, as any decision reached by a two-person Board would be deemed not to be rendered by a properly constituted EI Board of Referees.