HUMA Committee Meeting
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CANADA
Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities
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EVIDENCE
Tuesday, March 22, 2011
[Recorded by Electronic Apparatus]
[English]
Order, please.
I'll just remind everyone that we are now in public. We are continuing, pursuant to Standing Order 108(2), our study of the procedures and practices of the Employment Insurance Board of Referees.
I've had some people asking me about this particular study and discussing its scope. I want to remind everyone that this motion is that the committee “...study the procedures and practices for appealing a decision by the Employment Insurance Board of Referees, and that it report its findings and recommendations to the House”.
We are pleased to have officials with us today from the Department of Human Resources and Skills Development, Paul Thompson and Éric Giguère.
Mr. Thompson, if you'd like to present, that would be good, and then we'll have questions following your presentation. Go ahead, sir.
[Translation]
Madam Chair and members of the committee, I am pleased to have this opportunity to appear before you.
I have been asked to address the committee on the procedures for appealing decisions of the Employment Insurance Board of Referees to the umpire.
[English]
I'm sorry, but could you stop for a moment? We have some translation problems.
Go ahead, Mr. Thompson.
[Translation]
As I was saying, I was asked to address the committee on the procedures for appealing decisions of the Employment Insurance Board of Referees to the umpire.
I am joined today by my colleague Éric Giguère, Director of the EI Appeals Division, who also will be able to speak to various elements of the appeal process.
[English]
I would like to begin by providing a brief description of the overall EI appeals system.
The Employment Insurance Act provides two levels of appeal for EI claimants and their employers who disagree with a decision that is made by the EI Commission on matters that relate to the payment of benefits. The first level of appeal is the board of referees.
These part-time boards are independent, impartial three-member panels of laypersons from the community who hear appeals at 83 centres across Canada. The chairpersons are Governor in Council appointments, whereas the employer and the insured person representatives are appointed by their respective commissioners. There are currently more than 900 active members on the board of referees.
[Translation]
When EI clients receive notification of a commission decision they are informed of their right of appeal to the Board of Referees. Their appeal must be submitted to Service Canada in writing within 30 days, although this deadline may be extended by the commission for special reasons.
When Service Canada receives an appeal to the board, the letter and the appeal decision are reviewed to determine if the decision can be reversed. If the original decision is incorrect, it is reversed and benefits are paid, or the overpayment is removed, as applicable. If not the appeal proceeds to the board.
When appeals are going to the board, Service Canada aims to have these appeals ready and scheduled to be heard within 30 days from receipt of the client's letter.
[English]
The second level of appeal for claimants and employers—which is also the first level of appeal for the EI Commission—is the umpire. The umpire is an independent administrative tribunal that operates at arm's length from HRSDC. It is headed by the chief umpire, who is a Governor in Council appointee. Umpires are current or retired judges of either a superior, county, district, or provincial court, or of the Federal Court of Canada. Single-panel umpires hear the appeals across Canada.
When clients receive the decision of the board of referees, they are informed that they have a right to appeal that decision to the umpire. Their appeal must be submitted to Service Canada in writing within 60 days, although this deadline, as with the board of referees, may be extended by the umpire for special reasons.
[Translation]
It is important to note that the Office of the Umpire operates at arm's length from Service Canada and reports directly to the Chief Umpire in matters of case management and scheduling. I have been advised that the Office of the Umpire aims to hear appeals within six months in large centres and at latest, within 12 months in remote areas.
[English]
I mentioned that the commission also has a right of appeal to the umpire. The commission has a responsibility to ensure that clients are paid the benefits to which they are entitled. At the same time, the commission also has a responsibility to all Canadians to ensure that the EI fund is protected and is sustainable.
The commission respects the role and the authority of the board of referees. When reviewing a board decision that has allowed a client's appeal, the commission must clearly establish that at least one of the legislated grounds for appeal to the umpire exists. To reach this decision, a thorough review of the file is conducted, and there are strict guidelines to ensure that frivolous appeals do not proceed.
[Translation]
In the end, the commission appeals a relatively low number of board decisions to the umpire. In the past five years, the commission has, on average, appealed only 9% of Board of Referees rulings overturning the commission's decisions.
In conclusion, the EI appeals system has a long and enduring history of providing our clients with a quick, effective and efficient redress mechanism. But we are always looking for opportunities to improve. I am pleased to inform you that we have undertaken a number of initiatives to improve the quality and speed of our service.
[English]
These include a national appeals processing unit that's dedicated to addressing the increased workload from the economic downturn. We've created centres of expertise across the country. We are in the process of reviewing and simplifying appeals processes and looking at moving work more easily from place to place. We have plans in place to make use of imaging technology to facilitate the distribution as well, and to improve our tracking and filing system for clients.
[Translation]
The EI appeals system plays a tremendous role in providing feedback on the overall health of the EI program and it certainly influences program and policy direction. But what is most important is that it is an extremely important service to Canadians.
I look forward to your questions.
[English]
Thank you very much.
We will begin our first round of questions. There will be seven minutes for each question and answer.
Mr. Savage, we'll begin with you, please.
Thank you, Chair.
Thank you, gentlemen.
Mr. Thompson, it's good to see you at the committee once again.
We heard from some people who have had some issues with the appeal process for EI claims. We heard from a number of people about what percentage of claims are appealed, and what are successful and what aren't. You tell us that in the past five years the commission has appealed only 9% of the rulings of the board of referees.
Do you have full statistics on how many EI claims are appealed, and at what level, and what the success rate of all of those is?
There are some statistics published in the monitoring and assessment report produced by the commission every year. The next report is scheduled to come out in the coming weeks and reports on certain indicators, including the volume of appeals and some of the key performance indicators as well.
On the off chance that one or more members of the committee hasn't studied last year's report in depth, could you give us a précis of what the last report told us?
For 2008-2009, the overall number of appeals to the board of referees was just over 50,000, which represented about 1.6% of all EI claims.
In terms of the results that were favourable to the client, we've had a consistent range of 22% to 24% of appeals being decided in favour of the client.
Some of the complaints we heard were from people who generally work with workers who quite often feel overwhelmed by the process of appealing. We heard about some of the issues with how the boards are appointed. I don't think that's within the purview of the study we're doing. I'll leave that one aside, but there were some issues with how long the process took. There were issues raised about how well people are trained when they go on, for example, a board of referees.
Could you tell us who does the training before somebody is appointed, after they're appointed, and before they take part in the process?
The training strategy is the responsibility of the commission, and there was an independent consultant hired to develop the strategy and to deliver that strategy. Some of the elements of the training plan are indeed delivered by Service Canada. These tend to be the more technical elements around the legislation, but the ownership of the training plan itself rests with the commission. It was approved by the commissioner for workers and the commissioner for employers, and it is delivered and coordinated independently from it.
In your view, is there some room of review of that process to see if it is, in fact, providing the kind of people we need, with the training they need to do this work?
As I say, the ownership of the strategy rests with the commission. It would be their responsibility, I think, to arrive at that conclusion. The monitoring and assessment report, which I indicated does provide ongoing monitoring, including monitoring of the appeals system, would be the basis on which they could arrive at that conclusion.
The commission constitutes the commissioner for workers, the commissioner for employers, and the deputy minister of the department--
Could you not, then, suggest to the commission that there might be some training that could be made stronger?
If there were issues apparent, that could be a recommendation, but I'm saying that it would be a decision of the commission as a whole.
The chair of the commission is the deputy minister. The other two commissioners are the commissioner for workers and the commissioner for employers.
Understood, but I'm just trying to figure it out. We're doing this study and we're going to make recommendations. I assume we would make them to the commission, but is the commission an entity that reports to the department?
It doesn't report to the department. It is a separate legal entity that has delegated some of its responsibilities to the department to exercise.
I'm trying to figure out why we're looking at this and having you here if it's the commission that we should be dealing with. That's what I'm wondering. You're telling me that you guys are really at arm's length.
We have administrative responsibilities to support the appeals process, so a certain number of the performance indicators—
Okay.
We also heard about the length of time for this process. You've addressed some of that, but can you give us some statistics on the length of time to complete the process and whether that varies regionally across the country?
I don't have regional statistics available; are you're speaking about a board of referees hearing or an umpire? The motion, as I—
Let me just interrupt.
Once the decision is made, Mr. Savage, by the employment insurance board of referees, the appeal is to the umpire. Is that correct?
After a board of referees arrives at a decision, if that decision is not favourable to the client, the client has 60 days to file an appeal to the umpire.
Okay.
What about the idea that the boards of referees themselves—I'm looking at a recommendation that was made to our committee—could be better supported through the submission of files, which are quite often incomplete? There are high turnover rates, delays, and things like that. Do you have any comment on that?
We have service standards for supporting the hearings. It is the department's role to prepare the dockets or the files so that the board can arrive at its decision, so it's the department's role to enable the board to actually hold the hearing. That is a role that the department undertakes. I mentioned some of the measures we've pursued to ensure that it happens in a timely fashion.
[Translation]
Thank you for being here today to provide us with information.
I expect that since you are here, you will be able to answer most of the questions raised by witnesses on March 3. Among these questions there are a certain number that are particularly compelling and require answers.
Let us take the example of a situation where a work conflict has been settled but where certain employees do not return to work on the prescribed date because of certain provisions in the back-to-work agreement. According to a standard that was established—we do not really know by whom—as long as 85% of workers have not returned to work, the conflict is considered still active. That is why the commission refuses to grant benefits. Where does that standard come from?
I think that you are referring to the initial decision of the commission on eligibility to benefits.
The guideline states that the conflict is not considered to have been settled as long as 85% of workers have not returned to work.
I imagine that this is an issue that is related more closely to employment insurance policies; it is not related to the administration of appeals.
You could check that. However, for the unemployed person, for the person who has not returned to work, it is more than an administrative matter: it is a matter of survival.
In certain cases, we have seen that when the Board of Referees hands down a decision favourable to the worker, sometimes the commission appeals the decision to the umpire.
We know that when that appeal is filed 21 days or more after the decision date, the claimant can receive benefits. If this is done before that 21-day period has elapsed, the claimant is not entitled to benefits. Is that correct? Are you aware that the commission has filed appeals before those 21 days have passed, in several cases? And when the hearing before the umpire comes up, the commission withdraws its appeal and the effect of that is that it deprives the claimant of benefits during that entire period.
Are you aware of that? Do you think this procedure should be corrected?
An appeal could be withdrawn for three reasons. Often, it could involve cases where new information has come to light between the Board of Referees decision and the hearing before the umpire. On the basis of the new information, it could happen at that point that we decide to withdraw our appeal.
Could these things not be checked out earlier to avoid having the unemployed person wait so many months? Often, the withdrawal is filed in the days that precede the hearing before the umpire.
There are also other cases where we are dealing with an amendment to the act. For instance, the act may have said a certain thing when the decision was made, but it may say something else after an amendment. Such things are beyond our control.
Another possible situation arises when the decision of the Federal Court or another decision by an umpire sets a precedent. This can change the way we apply certain decisions.
If you happen to have answers that could mitigate these adverse effects, it would be good to share them with the committee so that we can take them into account in our report.
In another connection, something else was drawn to the attention of our committee. Sometimes, hearings before the Board of Referees had to be rescheduled because the recording equipment is obsolete. People go before the umpire, the counsel or the prosecutor has prepared his case, but the testimony turns out to be inaudible.
Are you aware of that? Are you taking any steps? This has happened more than once.
There are a limited number of situations where hearings are recorded. Perhaps Mr. Giguère could tell us about this. I am not aware of these situations.
Our speaking time is limited, and I would like to hear your thoughts on another aspect before the end of our work here.
The appointment of arbitrators is political; this is the minister's responsibility and that is fine. However, we are aware that certain arbitrators are very good and others are not. Witnesses who have appeared here have said that they would go so far as to question the cognitive faculties of one particular person to do the work.
Do you have a mechanism to assess the competence of the heads of boards of referees, to see whether they can discharge their duties properly?
[English]
[Translation]
I would simply say that this factor would be taken into consideration when the mandate of an arbitrator comes up for renewal.
[English]
I'd like to follow up on the question from Mr. Lessard. In my constituency office, we do a lot of EI work. We have a good office in Sault Ste. Marie that tries its best to respond and provide information to assist people. Since all of this work is being centralized, there's no opportunity for a person to get into the Service Canada office and see somebody who understands the local conditions and the local issues that often need to be addressed, so people come back to us and we have to intervene on their behalf.
First of all, we explain to them as simply as we can what the process is and what the regulations say, so that they can determine whether they should appeal or not. If that information were more clearly set out and if we had people at the local level in the local office who understood the conditions of the labour force and the employment circumstances in our area, then we would have way fewer of these appeals, but ultimately they appeal, although they don't always get their request in on time.
When they finally get to a place where they appeal, to whom are they appealing? Mr. Lessard asked about the requirements. What are the qualifications necessary for referees, these vice-chairs or local chairs? The only obvious one so far, in my seven years in this job....
After the present government came to power, they said they were going to set up an appointments commissioner to review all of these appointments to make sure they were done properly—
I'm sorry, Mr. Martin, but we're really straying off topic. Could we try to stay on the topic at hand, which is looking at the procedures and practices for appealing a decision by the employment insurance board of referees. It's actually that decision—
There's a large context here from which all of us come, because we deal with these things every day in our offices. We thought the government was going to put in place a process that would be at arm's length from these appointments. It's the referees and the qualifications of the referees that concern me. I was going to say, before I was interrupted, that the only consistent qualification is that previously they had to be Liberals and now they have to be Conservatives. That concerns me.
I do. There are a couple of things.
First of all, the motion by Monsieur Lessard deals with studying the procedures and practices for appealing a decision of the employment insurance boards of referees to the umpire, and that's what you presented. We haven't focused on that aspect at all in this study. We focused on the appeal provisions from the commission to the boards of referees, and if that's where we wanted to focus, perhaps that motion could have been better worded.
The motion restricts us to looking at the procedure process from the board of referees to the umpire, as you correctly pointed out in your opening remarks. It's on the practice and procedure and the process. It's not about appointments. When we talk about the process from the board of referees to the umpire, the umpire judges—
I know, and here's the problem. I tried to deal it with it directly.
Possibly you are leading up to a question that does deal directly with the topic we're discussing. If you are, obviously I want to give you that opportunity. I just reminded you, and I know you took my reminder--
Can I have some order right now? Thank you.
Mr. Komarnicki, you need to wrap up your point of order very quickly.
It's a point of order that has to be established so that Mr. Martin understands what I'm saying.
It's about the decisions of the board of referees that are appealed to the umpires. Those appointments are made by whomever, because they come under a judicial process that has a process all of its own. That is a fair question, but you're asking about political appointments to the board of referees, and that's not anywhere near the motion. It's out of order. It's out of scope, and it shouldn't be allowed.
All right. According to your point of order, you think it's out of scope to talk about how the board of referees is appointed, as opposed to how the board of umpires is appointed.
Mr. Martin, you heard that, and hopefully you're leading up to that point. I trust you are. You still have--
Did you have a point of order, Mr. Lessard, or can we carry on with Mr. Martin's question? He still has over three minutes left, which I'd like to give to him.
You would like to speak? All right.
[Translation]
Yes, I will be brief.
Our colleague Mr. Komarnicki is right about one thing: we don't study the way in which chairs of boards or umpires are appointed. We should at least see whether those who are appointed were part of the machine and whether we should be reviewing this at the same time. Indeed, this can have repercussions on the work of the tribunals. This is something that has to be examined with Mr. Martin.
[English]
That's correct. I think it is confusing for all of us. I know I've had to look several times. We have the board of referees and we have the umpires. Those are two distinctly separate entities, so even in my own mind, sometimes I have to make sure that I'm not confusing referees with umpires. Right now that's probably where we're having a little bit of contention, because we're talking about the umpires.
Anyway, you have just over three minutes left, Mr. Martin.
Thank you.
It might be like referees in hockey and umpires in baseball.
I'll come to my point, but thank you for your intervention and your direction and help, Mr. Komarnicki; I always appreciate it.
You have to understand that we have some real concern here, because this is one of the biggest files in my office. As we move people through the system, we have to be confident that they're actually going to get a fair shake. What I said was that so far in my experience--and I'll see if I can get this right--the only consistent qualification of the referees, both under the Liberals first and now under the Conservatives, is their political affiliation, so what's--
The point of order is that appointments to either of the boards--and forget the confusion as to whether it's the board of referees or the umpire--are not part of the study, so discussion about appointments being political or not political is not germane to this study and shouldn't be allowed.
Well, I frankly think the qualifications of the referees and ultimately of the umpires are relevant.
From my experience I know what the qualifications are for the referees, but how are the umpires appointed, and what are the qualifications? In your experience, are those appointments as politically directed or motivated as the appointments of the referees?
I'm not here to speak to the appointments process, and it wouldn't be within my purview to do that. I would just highlight, though, that the board of referees is a layperson panel, whereas the umpires are an arm's-length judicial tribunal of people who are former judges from the various levels of courts. So there are indeed differences between the competencies and background requirements for umpires and for referees.
So there is some room there for the appointment of judges who lean politically one way as opposed to another.
My concern is that the people we run through the system get a fair shake when they finally get to the referees and then the umpires. Are you confident that they will in fact get a fair shake, and that it won't be somewhat or even slightly politically motivated or tainted in order to give you better statistics? I'm thinking of the type of statistics you gave earlier to Mr. Savage.
Well, we have no reason to believe that they're not appointed properly. In part, it's because the office of the umpire is an arm's-length organization. The chief umpire is the one who, with the chief justice, appoints the umpires. We're not involved as part of that process, so I wouldn't be able to speak to any political affiliation or anything like that.
Thank you very much.
My first question was touched on already. It came up in previous meetings. It's in respect of the issue of a client sometimes not having appropriate time for preparation--at least, that was the allegation made. My understanding is that a client can ask for adjournment if he only got it a couple days beforehand and was not adequately prepared as a result. That's my first question.
I have three questions in a row here, but could you respond to that? The implication was that people weren't able to be properly prepared, which isn't fair, obviously. Can you respond to that and speak to that issue first?
We have fairly generous provisions that allow a hearing to be delayed if there are circumstances there. Éric, do you want to speak to any of the specific circumstances around which a hearing would be delayed?
Well, Mr. Vellacott spoke to the adjournment aspect. A client can request it. Ultimately, it's at the chairperson's discretion, but usually the first request for an adjournment generally would be allowed.
How long a time would that be? Would it be adjourned for a week, 10 days? What's the length of time?
It's within 45 days, so it's not the next day or an adjournment for one day only. Is it a minimum of seven days, or...?
It's unlikely. Okay.
I'll go to the issue of the training, then, because it was also brought up, and we've touched on it here a little today too. There was an accusation made, in connection particularly with union reps and so on, that in a way all the training came with a bias from the commission. I think that's what I seemed to pick up there.
Can you tell us a little bit more about the “neutral” training by an outside legal firm or entity? Is all of the training provided by an outside legal firm or entity, or is some provided by the commission? Is there an opportunity for a union, say, to get more of those things that would come from their point of view as they make representations or appeals on behalf of people?
The training is a joint exercise. The first level is a four-day training period. The commission would have a couple of days to go through the act and summarize how the EI Act works, and also to work through some of the tools that we have on our website to help appellants--and, of course, members--look through jurisprudence to help them make their decisions. Then the outside experts come in and talk about the administrative tribunal practices, such as principles of natural justice, how to conduct a hearing, writing decisions, and that kind of thing.
So a union or agencies that work on behalf of union members and so on can get any kind of training they want outside. As well, they will certainly get some adequate training here, if they choose, will they? Are they able to get that as well?
In part, the board referee is meant to be impartial. The fact that the commissioner for employers would name an employer representative doesn't mean they're supposed to be defending the employer side. They're supposed to be impartial. They're a member of the board of referees and they're there to decide on the appeal before them. Whether it's the president, the employer representative, or the worker representative, it shouldn't matter--
That's reinforced. Okay.
The other thing that was mentioned may be different in different parts of the country. In previous testimony here, it was mentioned that because the hearings are generally done at the commission's offices in Saskatoon or wherever it has to be, sometimes people feel a little intimidated, let's say, or a little threatened by that. I think that was the inference of the people who brought this up.
Can you talk about that a little bit? I take it, having talked to somebody who has served in that board of referee role, that they have computers and copy machines if they're suddenly quickly required. Can you also touch on what the costs would involve if we were to begin to do these hearings across the country in a backroom or the facility in the back of Sam Wong's restaurant or some other facility? What would be the problems with doing it off-site if that would make for greater ease and for people feeling comfortable coming into these settings?
We have the hearings scheduled in the board centres for a number of reasons. There is definitely a cost factor, but there is also a privacy factor. This is confidential client information, and there are system requirements to protect that information. It's a secure facility that we have these hearings in.
We mitigate. It's part of the standard practice for the chair of the board of referees to strongly emphasize at the beginning of every hearing that this is an impartial hearing and that the board of referees acts separately from the commission and the department. It is a very strong part of the practice to emphasize the impartiality of the decision-making while having the ease of access to the documentation and the use of cost-effective facilities.
That's good. I'll probably save it for the second round, but I was pondering how it is there might not be many New Democratic retired judges of various courts.
Again, it's out of the scope of the study.
We have a good amount of time, so we'll go to a second round. This will be a five-minute round.
We'll begin with Madam Minna.
Thank you, Madam Chair.
Welcome.
Just for confirmation, are the umpires appointed by the commission? Who appoints the umpires?
I understand, but is the chief umpire appointed by the government, or is he appointed by the chief justice in consultation with the government? I'd just like to know.
It seems like a long time to me for a case to last 12 months at the umpire level, as it seems here, especially if someone is waiting for money. Is that standard, and is there any reason that it would take that long?
That's not a performance measure that we track, since this is an arm's-length judicial body that is hearing these cases. We're informed that 12 months is the average length of time, but I'm not in a position to comment on--
I'd have to check. I'm not sure that we have the stats here with us, but we can provide that information.
We are not responsible for that. The umpire, as I said, is an arm's-length organization that reports on its.... We don't have that.
There is some information on the volume of appeals in the monitoring and assessment report, which, as I said, will be coming out in the coming weeks.
The information for 2008-2009 is in the current monitoring and assessment report. The information for the following year will be in the forthcoming monitoring and assessment report on volumes of appeals to the umpire.
That's what I want. That's what I'm interested in knowing--how many cases come in, how many are requested, and what percentage of success there is.
I don't believe the monitoring and assessment report reports on the outcomes, since it's not a responsibility of the commission. It's a judicial body, so it wouldn't be. However, the commission is aware of the number of decisions within its purview that go to the umpire.
I imagine the commission should know how many of the cases that go to the umpire actually are held up for the appellant.
Would you not have that information? I would suspect you'd be interested in it.
Yes, it's about 20% of client appeals, which is similar, as I was indicating earlier, in the success rate of client appeals to the board of referees, which I said was 22% to 24% on average.
I see.
In your presentation, Mr. Thompson, you said something to the effect that the commission also has the responsibility to all the premium payers to ensure that the EI program is properly administered and protected and sustainable.
I found that strange. Wouldn't that be the responsibility of the commission or the government or someone else? Wouldn't your primary responsibility here be to protect the rights of the individual appealing, as opposed to worrying about whether you're protecting the system overall? It's an appeals process. I find that strange.
The commission has an overall responsibility for the administration of the EI program and the responsibility to premium payers for lawful and appropriate administration of the program. It's a dual responsibility in terms of the rights of the claimant as well as upholding the integrity of the--
Maybe.
I have a quick question. The referee board is made up of representatives of the employer, representatives of employees, and representatives of the commission. Is that correct?
--and there are two appointees. There's a list of board of referees developed by the commissioner for workers and one developed by the commissioner for employers. There are always the three: workers, employers, and a neutral chair.
So the workers appoint someone, as do the employers, and there's a neutral chair. Thank you very much for that clarification.
Go ahead, Mr. Komarnicki, for five minutes, please.
Thank you.
Part of the issue here is that the motion requests us to study the practice and procedures for appealing a decision from the board of referees to the umpire, and we've strayed in many various different directions. Most of the evidence related to presentations to the board of referees in some of the issues they had with that aspect of it; I'm not sure that's actually within the purview of our study, but quite a bit of evidence was heard on that, so I'd like to pose a few questions on that to you.
One of the issues they were concerned about is that in the assignment of the cases, you might have a person coming before the board of referees who would have an obvious conflict with either the employer representative or the employee representative, which meant that they would have to disqualify themselves and the thing would then have to be reset. They'd have to find a new person because of this issue of conflict.
Now, it would seem to me it would be a relatively simple matter to resolve that issue by making the cases and the people who are sitting on the cases known much earlier. Whose purview would that be under? Is that under the department's purview, or would that be something that the commission would need to deal with to improve that area? Do you know?
The department supports the chair of the board of referees in undertaking the scheduling. They endeavour to do it in as timely a fashion as possible. In the majority of cases I think we would be able to identify such a conflict in advance and simply revamp the schedule to ensure that we have board members who are indeed impartial and have no conflict of interest in it. It's part of their obligation to declare such a conflict themselves.
There was some issue about that, and if there's any way of resolving that better than it is now, I think it would certainly assist them.
I'd like to add that we try to get out the appeal dockets to the various board members who are going to hear the case about 10 days before the actual hearing, so in theory they would be seeing the names of the people.
Is there a possibility of identifying those conflicts earlier, so that parties could be notified sooner in the process? I know it was an issue they raised, and you might take that under consideration.
Another area that was raised was the fact that when people were getting ready for trials, for one reason or another it couldn't go ahead because something was lacking and it fell apart. I know that in the legal process, at least in the judicial system, they have pretrial management conferences at which all of the parties are called together before the actual hearing to resolve any difficulties that there might be. They streamline the process and condense the actual hearing many times to much fewer days.
Is there anything like a pre-hearing management process that could try to eliminate many of the difficulties that the parties might face if you otherwise hadn't had it?
I would mention two things. As I mentioned in my remarks, when we first receive the appeal, the first step is to review the issue at hand. In many cases we will immediately conclude that there was an erroneous decision made and solve the matter right then. There's this first review step, which we find quite helpful.
This is before it even gets to the board of referees. We can review and take a second look at the actual decision that was made. That is the first step.
The board of referees itself is generally a fairly informal hearing process compared to the more formal umpire hearing. There's a flavour of that informal approach that you're speaking of.
What I'm getting at is a management hearing at which the board of referees or somebody on their behalf talks to the appellant and the employee and so on to resolve lack of documentation, difficulties with timing, all those kinds of things that might arise. Is there any process in advance of the hearing to make sure it gets expedited when the actual hearing date arrives?
Our focus has been on trying to have a timely hearing. Our worry would be that if further steps were put in, it might slow down the ultimate hearing. It's not something we've actively considered.
Yes, but you'll probably have time to go again.
I have a quick follow-up question.
In regard to the docket that the board of referees receives about 10 days prior, is that the same information the claimant would receive?
Right. They're all mailed at the same time, and any difference will be just in the delivery times.
Mr. Lessard, you have five minutes.
[Translation]
I would like to continue speaking about the Board of Referees. We know that everyone who sits on such a board is important. There is an arbitrator for employers and one for the unions or the worker. If there is a difference of opinion between the two, the chairperson will adjudicate.
So it is very important that the chairperson's qualifications be a known quantity. However when it can take a half hour if not an hour to summarize the situation for the chair, as we have heard here, for instance, there is a problem. Is there some way of proceeding, aside from action on the part of the two arbitrators, so that this can get to you and you could intervene? If the arbitrators intervene, that can also go against them, because they also have to be ratified.
I would have several things to say. First of all, most of the decisions of the Boards of Referees are unanimous. Differences of opinion among the panel members have not arisen very often.
As I said, it is not up to me to talk about the appointment process. We have a role to play in the training procedures. From time to time, if there is a serious issue involving the work of a board, when the time comes to renew the mandate of an arbitrator, then we have an opportunity to raise the matter.
I understand your position well. This is not your responsibility. If the person was appointed for three years, as is the custom, we are stuck with that person for three years whatever their level of competence might be.
[English]
Monsieur Lessard, I'm sorry, but I'm having a little translation problem. I want to reiterate for the translators as well that when we're referring to the “referees”, as much as possible we'll call them “referees”, and the translators could call them “referees”, and when we're talking about the “umpires”, we'll refer to them as “umpires”, and the translators could call them “umpires”.
In the translation I'm hearing you intermix the terms “referees” and “umpires”, so I'm not clear as to which we're talking about. I'm not sure if the word is the same en français.
[Translation]
[English]
Thank you. I'll be clear on whether we're talking about referees or umpires, and we all will.
Thank you so much for that.
[Translation]
Mr. Komarnicki drew a distinction regarding the procedure that I would like to get back to. There are two things to be differentiated: there is the moment when one is advised of the hearing, and the moment when one receives the documentation for the hearing.
The person who defends the claimant will often receive the documents necessary to prepare the defence on the eve of the hearing or two days before it. If you don't have an answer to this right now, I would like to receive one before we draft our report.
And I would like to get back to another aspect of the proceedings that was raised earlier, that is the location. We know that often, a person is associated with a political party. The chairperson of one board of referees even ran for the Conservatives in the last election. I would like you to provide us with an answer on that.
As to the location of the hearings, they take place in the commission's premises, as a Conservative colleague pointed out earlier. Would it not be possible to come to an agreement with the municipalities concerned to hold the hearings in the municipal council offices? The members of city councils are often happy to put those offices at our disposal.
That is a suggestion you could examine. The point is to make everyone comfortable.
I mentioned the factors that are taken into consideration when the decision is made to hold hearings in the Service Canada centres. The cost of renting a room is often very high, for one thing. Confidentiality and the protection of the information we have at the commission are also among the factors we consider.
I would add that in Service Canada centres, we can have administrative and technical support that we would not necessarily have elsewhere.
That is an important point. There are administrative links between Service Canada and the boards of referees. These connections are necessary.
[English]
I'm sorry, there isn't time, but we will have time for another round and we will come back to you.
We'll go to Mr. Vellacott now.
I wanted to clarify in respect to mailing the material 10 days in advance. Is it mailed out 10 days in advance? Is that what we're talking about? In that case, obviously they would not necessarily receive the docket of material 10 days in advance, then.
Maybe there is a bit of a problem, then, because as you implied, Éric, everybody's not going to get it at quite the same time. Sometimes it might be five days prior that the person receives it; they get it on a Friday and they have Saturday and Sunday. If they were connecting with some worker or agency that was going to assist them in representation and there was a long weekend or whatever, they'd maybe have two or three days in advance. I don't know if that's something that needs to be looked at a bit, but 10 days in advance may not be enough time, especially if we've got longer mail delivery times. Do you have any way of tracking this? I'm assuming it just goes by regular mail. Are people getting it within a couple days, or it could be up to four or five days by mail?
That's something we would monitor. I would mention, though, that I did speak to the modernization measures that we're pursuing, which we hope will facilitate all aspects of administration of this process, including the distribution of documents. We rely very heavily on paper files right now, and in the future we hope that won't always be the case as we move towards imaged documents and secure technology.
Okay. That might help for sure.
The other thing that’s come up in the past is rural areas. I’m in a city, Saskatoon. It's not huge, but it is of significant enough size that we don’t tend to hear about the types of so-called conflicts of interest that I think a number of colleagues in certain rural areas of the country may have. Are there higher conflicts of interest in parts of the country where you might have some large employer, and that employer is on the board of referees, or maybe everybody just knows everybody or is related to everybody? Is that a more rural issue in terms of conflict of interest, as opposed to an urban or semi-urban situation?
We don't track statements of conflict of interest. We're just aware of the practice. When it happens, that member withdraws from the public hearing.
Would that information, which is not held by the department, be held by the commission? Would the commission have that information? Who has that?
—and monitored. The hearing is often just simply rescheduled, and the results are factored into the....
So somebody asks for an adjournment when he didn't have enough time or if it was a conflict of interest. Those would be the indicators. There may be the fact that they're involved.
Somebody should keep track of that stuff, I think. I'd surmise that it's more of an issue in some rural areas, where you have large employers or a single industry or something. I don't hear as much of these conflict-of-interest issues as some members across the way were reporting before.
Anyhow, I think that sums up my questions and comments.
Thank you very much.
Okay, thank you.
There are a couple of minutes left. Is there anyone else on that side?
Mr. Martin, did you have another question?
[Translation]
Thank you very much, Madam Chair.
I am pleased because this is going to allow me to clarify one of the points in the information you sent us.
If someone applies for employment insurance and is denied benefits, this refusal occurs at the Employment Insurance Commission. Since benefits have been denied, the person appeals to the Board of Referees. At that stage, you told us, appeal files are sent by regular mail. The person does not receive his or her file by some other type of mail.
So, priority post. When we were talking about the 10-day turnaround earlier, we were talking about documents being sent by priority post.
So the person has 30 days to file an appeal before the Board of Referees. Who calls the person to provide the date of the hearing that will take place before the board? Is it the clerk of the committee?
The person meets an employment insurance agent and the claim is denied. At that point, who prepares the appeal file, the document that will be used for the defence before the Board of Referees?
It is the information that is in the person's file with regard to the denied benefits. So it is the commission alone that prepares that document.
The commission appoints the panel members that sit on the Board of Referees. It appoints the chairperson, who represents the commission. The commission also prepares all of the information. It conveys the information to the Board of Referees for the appellant's file.
Consequently, claimants are alone to defend their appeal in the presence of these three panel members.
The last time, witnesses told us that files often came late. Normally, there is a 10-day timeframe so that people can prepare to go before the board. But the time period is actually less: people only have six or seven days to prepare the file with the worker, rather than 10 days. It is not the fault of the clerk, since she waits for the information to come from the Employment Insurance Commission. This reduces the time. And that is the problem. Have you any solutions to propose that could correct this situation?
Also, a lot of workers do not go before the board alone. They have neither the knowledge nor the competence to represent themselves. So they must call on legal aid to obtain the services of a lawyer. There are also delays involved in that.
Is all that taken into account when people try to facilitate a worker's defence, to have someone represent him?
Does the clerk send the appeal file to the worker's representatives, or is the worker the only one to be called? Does the clerk also call the worker's lawyer or advocate so as to inform that person as well?
...the representative or the claimant. I think communication is with the claimant, but I would have to confirm that.
Is more time allocated in certain cases? We want to be fair, so the same time frame is applied to everyone, whether the person has a representative or not. We do not want to give anyone preferential treatment and so we do not necessarily consider whether a person has an advocate or not.
However, if the claimant tells you that he has a lawyer, if he provides you with a name or contact information or tells you that someone will be representing him, why do not you communicate with that person?
I would appreciate that.
When a claimant does not have enough knowledge to defend himself and must call on someone to represent him, that second person should be informed quickly.
On the matter of time frames, we have heard that it takes six to seven days to prepare a file. Do you think you can improve that?
When we prepare files we try and do that as quickly as possible, given the complexity of files. This 10-day standard was put in place to make sure a date was set for the hearing, and to try and give the person as much time as possible.
If need be, we can ask that everything be postponed to give claimants more time.
Since these workers do not have any income while this is going on, they want things to get settled as quickly as possible.
[English]
Thank you very much.
Seeing no more questions from members, I will say thank you to the witnesses for being here. Thank you for answering our questions.
I want to speak with the committee briefly about our next two meetings.
Right now we are scheduled to be planning our disability study. For the first hour, we are scheduled to be discussing and planning the disability study. The adoption draft report is ready, so I would suggest, if the committee is in agreement, that we could take a look at that in the second hour of Tuesday's meeting. Then, on Thursday, I would like us to begin the disability study, even though we won't have all of the parameters.
An hon. member: Is this next week?
The Chair: Yes, we're talking about next week.
On Tuesday, then, for the first hour we'd be looking at and discussing the parameters of the disability study.
Would the committee be in agreement to use the second hour for looking at the draft report on adoption? I think we probably need only an hour to get it completed. Then, on the following Thursday, we'd begin our disability study, if that's all right with the committee. That is what we had planned.
Yes, this coming Thursday the minister is here for the estimates.
An hon. member: Are we in public?
The Chair: We're in public.
I have a quick question.
We have the minister on Thursday. Will that be a televised meeting, as is usually the case?
[Translation]
[English]
She will be here for the first hour to answer questions on Mr. Savage's motion. For the second hour, she will be here to talk about the main estimates.
[Translation]
[English]
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