The Tribunal is an independent administrative tribunal that makes decisions on appeals related to Employment Insurance, Canada Pension Plan, and Old Age Security benefits. As a tribunal, the Tribunal is set up to be less formal than a court. Its goal is to deliver justice simply, quickly and fairly.
Many of the appellants who use the Tribunal’s services are among the most vulnerable Canadians. Some are people with disabilities, seniors and those who are unemployed. Some appellants do not have secondary or post-secondary education. Some appellants do not speak English or French as their first language.
Very few appellants are represented by lawyers or paralegals. Most appellants represent themselves.
The Tribunal is focused on promoting access to justice. Our goal is to issue decisions that are fair, legally accurate and written in plain language.
Tribunal members are appointed by the Governor in Council for fixed terms. They are solely responsible for making decisions on appeal files.
The Tribunal also employs lawyers who provide a full range of legal support services to the Chairperson, senior management, Tribunal members and other Tribunal staff. One of the services Tribunal lawyers provide, upon request from a Tribunal member, is a review of the member’s draft reasons for decision.
These general principles apply to any review by a Tribunal lawyer of a Tribunal member’s draft reasons for decision.
- Reasons review is offered as a service to all members.
- A Tribunal lawyer reviews draft reasons for decision only when a Tribunal member requests it.
- Reasons review respects the independence of Tribunal members in making their decisions. The Tribunal member is free to accept or reject comments made by a Tribunal lawyer on their draft reasons.
- The request for reasons review, the advice provided and any communication between the Tribunal member and the Tribunal lawyer about the request and review do not form part of the appeal record. None of that information is available to the parties or the public.
- Requests and related legal advice may be used to develop learning modules for Tribunal members or tools to support decision-making (such as policy instruments). Information that could identify people involved in those appeals is removed before they are used for these purposes.
Objectives of reasons review
The objectives of reasons review are to:
- improve the quality of decisions;
- encourage clear, concise decisions that focus on the legal issues that are necessary to decide an appeal;
- ensure that reasons accurately reflect the decision rationale;
- promote consistency and coherence of the Tribunal’s body of decisions; and
- minimize reviewable errors.
Reasons review is also an important part of the training provided by the Tribunal to new Tribunal members. Tribunal members in training are expected to send all draft decisions for reasons review by Tribunal lawyers. They are expected to do this until their Vice-chairperson decides that it is no longer required.
As a legal support service, reasons review is also available to experienced Tribunal members. Use of the service by experienced Tribunal members is completely voluntary. However, members are encouraged to seek reasons review in cases where they are dealing with a new or complex issue, or an issue where there is an inconsistency in the decisions of the Tribunal.
A Tribunal member may also seek legal advice on any issue related to an appeal or proceeding and the same general principles from that section of this document will apply.
Scope of reasons review
The scope of comments and advice provided by a Tribunal lawyer on draft reasons for decision is limited to:
- substantive legal and procedural issues;
- potential errors of law, jurisdiction or natural justice;
- potential findings of fact contrary to or unsupported by the evidence cited;
- apparent gaps, inconsistencies and incoherence within the draft reasons; and
- court and tribunal jurisprudence, legal opinions and other legal reference materials that may be relevant to the draft reasons.
In general, a Tribunal lawyer reviews only the draft reasons without reference to the appeal file. However, a Tribunal lawyer may access the appeal file if needed to meet the objectives of reasons review.
Consultation among Tribunal members
Like reasons review by Tribunal lawyers, discussion among Tribunal members of draft reasons for decision also contributes to the quality and consistency of the Tribunal’s decision-making.
The Tribunal encourages members to circulate draft reasons for discussion and comment by colleagues when dealing with a new or complex issue, or an issue where there is an inconsistency in the decisions of the Tribunal.
As the decisions of higher courts make clear, consultation on draft decisions is entirely voluntary. The Tribunal member who heard the appeal can in no way delegate her or his decision-making responsibility to colleagues through the consultation process.1
Consultation among Tribunal members on draft decisions and reasons review by Tribunal lawyers are entirely compatible with one another. Tribunal members do not need to choose between these options. They can use both to support their decision-making and reasons writing.