Social Security Tribunal of Canada

SST proposed Rules of Procedure

 The public consultation is now closed. Feedback received as part of the consultation will be reviewed to make any necessary changes. The final version will be published in Part II of the Canada Gazette.

Notice

Proposed Rules of Procedure: Public consultation!

May 27, 2022

Division 20 of the Budget Implementation Act, 2021, No. 1 (BIA) introduced changes to the Department of Employment and Social Development Act (DESD Act). The DESD Act sets out the Social Security Tribunal’s powers. Section 221 of the BIA includes a new power for the Chairperson to make rules of procedure for how we manage appeals.

Relying on this new authority, I am pleased to share below our proposed Social Security Tribunal Rules of Procedure for public consultation. We are putting them on our website instead of pre-publishing them in the Canada Gazette, Part I. That way, we can reach more of you.

This consultation will run for 31 days. Send us your comments by email at:

SST.RULES-TSS.REGLES@canada.gc.ca

The deadline to send comments is June 27, 2022.

Paul Aterman
Chairperson
Social Security Tribunal of Canada

SST proposed Rules of Procedure

Print version

Introduction

Purpose of these Rules

1(1) These Rules set out the procedure for appeals before the Tribunal. The Rules aim to help parties understand the appeal process and their roles and responsibilities. The Rules and the appeal process are meant to promote access to justice.

Tribunal’s authority

(2) The Tribunal decides appeals from reconsideration decisions under

(a) the Canada Pension Plan;

(b) the Old Age Security Act; and

(c) the Employment Insurance Act.

About the Tribunal

2 The Tribunal is an independent administrative tribunal. It consists of the members of the General Division and Appeal Division. They are appointed under Part 5 of the Department of Employment and Social Development Act. The Tribunal is supported by the Tribunal Secretariat. The Secretariat consists of employees of the Administrative Tribunals Support Service of Canada. The Secretariat carries out some administrative tasks related to these Rules for the Tribunal.

Overview of these Rules

3 These Rules are set out in the order that they normally apply, but the order may be different in some appeals. Not every rule applies in every appeal. The Rules are divided into the following Parts:

(a) Part 1 sets out how to interpret the Rules;

(b) Part 2 sets out general rules about what the Tribunal can do and how it conducts the appeal process;

(c) Part 3 sets out the roles and responsibilities of participants and the Tribunal;

(d) Part 4 sets out how to file documents with the Tribunal and how the Tribunal handles documents;

(e) Part 5 sets out how to appeal, how the Tribunal handles late appeals, what language the appeal can be in and how the Tribunal adds parties;

(f) Part 6 sets out various procedures that may apply in the appeal process;

(g) Part 7 sets out specific rules for Income Security appeals at the General Division and Appeal Division;

(h) Part 8 sets out specific rules for Employment Insurance appeals at the General Division and Appeal Division;

(i) Part 9 sets out when an oral hearing may take place without a party and when the Tribunal must give its decision;

(j) Part 10 sets out how the Rules apply to appeals that are ongoing when the Rules start to apply; and

(k) Part 11 sets out when the Rules start to apply.

Part 1 - Interpretation

What Part 1 is about

4 This Part sets out definitions for terms and expressions used in these Rules. This Part also sets out how the Tribunal interprets and applies the Rules.

Definitions

5 The following definitions apply in these Rules. To understand the Rules, it is important to first read the definitions and then refer back to them as needed.

appeal means an appeal under Part 5 of the Department of Employment and Social Development Act. It includes applications for permission to appeal to the Appeal Division. (appel)

appellant means the person who appeals a reconsideration decision to the General Division or a General Division decision to the Appeal Division. At the Appeal Division, the appellant may also be the Minister or the Commission. (appelant)

argument means a submission that sets out a party’s point of view about what the Tribunal should do in an appeal. A party may file arguments with the Tribunal or make arguments at an oral hearing. (argument)

business day means a day that is not a Saturday, Sunday or holiday. (jour ouvrable)

Commission means the Canada Employment Insurance Commission. (Commission)

conference means a meeting before a hearing to talk about an appeal. (conférence)

contact information means

(a) an address;

(b) a phone number, if there is one; and

(c) an email address, if there is one. (coordonnées)

Employment Insurance appeal means an appeal from a reconsideration decision the Commission made under the Employment Insurance Act. (appel en assurance-emploi)

evidence means something that a party presents to the Tribunal to prove a fact. It includes documents, photographs, video recordings and sound recordings that a party may file with the Tribunal. It also includes testimony given at an oral hearing. (élément de preuve)

Income Security appeal means an appeal from a reconsideration decision the Minister made under the Canada Pension Plan or the Old Age Security Act. (appel en sécurité du revenu)

Minister means the Minister of Employment and Social Development. (ministre)

participant means

(a) the parties; and

(b) representatives, support persons, witnesses and interpreters who take part in an appeal. (participant)

party means

(a) the appellant and the Minister, for Income Security appeals at the General Division;

(b) the appellant and the Commission, for Employment Insurance appeals at the General Division;

(c) the appellant and all other parties who were before the General Division, for appeals at the Appeal Division; and

(d) any person added as a party under section 31. (partie)

permission to appeal means leave to appeal a General Division decision to the Appeal Division under section 58 or 58.1 of the Department of Employment and Social Development Act. (permission de faire appel)

reconsideration decision means the decision that the Minister or Commission made under

(a) section 81(2) or (3) of the Canada Pension Plan;

(b) section 27.1(2) of the Old Age Security Act; or

(c) section 112 of the Employment Insurance Act. (décision de révision)

reconsideration request means a request for the Minister or Commission to reconsider a decision under

(a) section 81(1) or (1.1) of the Canada Pension Plan;

(b) section 27.1(1) or (1.1) of the Old Age Security Act; or

(c) section 112 of the Employment Insurance Act. (demande de révision)

settlement conference means a confidential meeting between the parties to try to settle an appeal without a hearing. (conférence de règlement à l’amiable)

How the Tribunal interprets and applies these Rules

6 The Tribunal must interpret and apply these Rules so that

(a) the appeal process is simple, quick and fair;

(b) the Tribunal considers the parties’ particular circumstances;

(c) every party can participate in the appeal process, even if they do not have a representative; and

(d) the appeal process is flexible and appropriate for what the Tribunal must decide in each appeal.

Part 2 - General Rules

What Part 2 is about

7 This Part sets out

(a) how the Tribunal conducts the appeal process;

(b) what happens if the Tribunal cannot reach a party; and

(c) how to ask for an accommodation.

Conducting the Appeal Process

Making the appeal process simple, quick and fair

8(1) The Tribunal must make sure that the appeal process is as simple and quick as fairness allows.

Using different methods of adjudication

(2) The Tribunal may use different methods of adjudication when needed to help parties participate fully in the appeal process. This includes using methods other than the adversarial methods of adjudication the courts typically use. The Tribunal may use active adjudication as described in section 17(2).

If a party wants the tribunal to decide on a procedure

(3) A party may ask the Tribunal to do or decide something as part of the appeal process. To do this, the party must file a request with the Tribunal. The request must set out what the party wants and why.

Adapting these Rules

(4) The Tribunal may adapt these Rules or decide that a party does not need to follow one or more rules if it is in the interest of justice.

If these Rules do not cover something

(5) The Tribunal may decide the procedure for anything not in these Rules or the Social Security Tribunal Regulations, 2022.

Continuing the Appeal Process Without a Party

Contact information on file

9(1) The Tribunal uses the contact information it has on file when it contacts a party or sends a document to a party.

If the Tribunal cannot reach a party

(2) The Tribunal may continue the appeal process even if it cannot reach a party using the contact information the party gave it. The Tribunal may do this without giving further notice to the party.

Asking for an Accommodation

Definition of accommodation

10(1) In this section, accommodation means an arrangement to remove a barrier so a person can participate fully in the appeal process. An accommodation must relate to one of the grounds set out in section 3 of the Canadian Human Rights Act.

If a participant needs an accommodation

(2) A participant must notify the Tribunal as soon as possible if they need an accommodation.

Part 3 - Roles and Responsibilities

What Part 3 is about

11 This Part sets out the roles and responsibilities of participants and the Tribunal.

All participants

Participants’ responsibilities

12 Participants must

(a) be respectful and help maintain a safe environment;

(b) be honest; and

(c) not act in any way that goes against these Rules or the appeal process.

Parties

How parties participate

13(1) Parties are responsible for participating in the appeal process. This may include

(a) preparing documents;

(b) filing documents with the Tribunal;

(c) presenting evidence or arguments;

(d) attending a conference or a hearing;

(e) questioning witnesses; and

(f) responding to another party’s arguments.

Following Rules and directions

(2) Parties must follow these Rules and the Tribunal’s directions. This includes

(a) communicating with the Tribunal and responding to its requests; and

(b) meeting the deadlines the Tribunal sets out.

Keeping contact information up to date

(3) Parties must notify the Tribunal as soon as possible of any changes to their contact information.

Representatives

What a representative does

14(1) If a party chooses to have a representative under section 63.1 of the Department of Employment and Social Development Act, the representative acts on behalf of the party by presenting their position. A representative may represent a party for all or part of the appeal process.

How a representative participates

(2) A representative is responsible for participating in the appeal process in the same way that a party participates under section 13.

Sharing information with a party

(3) The Tribunal communicates directly with a representative. The representative must share information they receive from the Tribunal with the party they represent.

Keeping a representative’s contact information up to date

(4) A representative must notify the Tribunal as soon as possible of any changes to their contact information.

If a representative stops representing a party

(5) A representative must notify the Tribunal as soon as possible if they stop representing a party.

Support Persons

Definition of support person

15(1) In this section and in Part 1, support person means a person who helps a party at an oral hearing by

(a) organizing their documents;

(b) taking notes for the party; or

(c) giving moral and emotional support.

How a support person participates

(2) A support person does not represent the party, but they may attend the oral hearing as an observer.

Sharing information with a support person

(3) The Tribunal does not communicate directly with a support person outside an oral hearing. A party is responsible for sharing information from the Tribunal with their support person if they want to.

Witnesses

What a witness does

16(1) A witness testifies at an oral hearing to give relevant evidence.

How a witness participates

(2) A witness may be questioned by a party, a representative or the Tribunal. A witness must answer all questions truthfully.

Tribunal

What the Tribunal does

17(1) The Tribunal hears appeals in a way that makes sure parties can participate fully in the appeal process. The Tribunal considers all of the parties’ evidence and arguments and gives a decision.

How the Tribunal actively adjudicates

(2) The Tribunal actively adjudicates appeals. Active adjudication may include

(a) deciding what issues need to be addressed;

(b) deciding what procedures are appropriate in the circumstances;

(c) helping parties, representatives and witnesses understand the appeal process and these Rules;

(d) providing information about the laws that apply to the appeal;

(e) providing information about the evidence;

(f) deciding the order for parties to present evidence or arguments at an oral hearing; and

(g) asking parties, representatives and witnesses questions.

Part 4 - Documents

What Part 4 is about

18 This Part sets out

(a) how to file documents with the Tribunal and what the Tribunal does with them;

(b) what the Tribunal can do with electronic documents; and

(c) when the Tribunal considers that a party has received a document.

Documents Filed with the Tribunal

How to file documents

19(1) A party that needs to file a document with the Tribunal must file the document

(a) by email, using the address set out on the Tribunal’s website;

(b) by mail, using the address set out on the Tribunal’s website; or

(c) electronically, using the electronic filing procedure set out on the Tribunal’s website.

When a document is filed

(2) A document is considered filed on the date the Tribunal receives it. On each document, the Tribunal indicates the date it received the document.

Extending a deadline that falls on a weekend or holiday

(3) If a filing deadline set by the Tribunal or these Rules falls on a day that is not a business day, the deadline is extended to the next business day.

Adding documents to the appeal record

20(1) When a party files a document to support their position in an appeal, the Tribunal must add it to the appeal record.

Sending copies to parties

(2) When a party files a document to support their position in an appeal, the Tribunal must send a copy of it to the other parties as soon as possible.

Accessing documents in the appeal record

(3) The public may access the documents in the appeal record unless the Tribunal limits public access to them under section 3 of the Social Security Tribunal Regulations, 2022.

Electronic Documents

An electronic copy is an original

21(1) An electronic copy of a document is considered the original version of the document.

Making electronic copies

(2) The Tribunal may make an electronic copy of any document filed.

Providing an electronic copy

(3) The Tribunal may provide an electronic copy of any document filed.

Certifying an electronic copy as a true copy

(4) The Tribunal may certify an electronic copy as a true copy.

Receiving Documents from the Tribunal

When a party receives a document by regular mail

22(1) When the Tribunal sends a document to a party by regular mail, the document is considered received 10 days after the day it was sent.

When a party receives a document by registered mail or courier

(2) When the Tribunal sends a document to a party by registered mail or courier, the document is considered received on the date of the delivery confirmation receipt.

When a party receives a document electronically

(3) When the Tribunal sends a document to a party by email or another electronic method, the document is considered received on the next business day.

Exception

(4) The Tribunal applies sections 22(1) to (3) unless a party shows why the Tribunal should not apply them.

Part 5 - Appealing a Decision

What Part 5 is about

23 This Part sets out

(a) how to appeal and what information to provide;

(b) how the Tribunal handles late appeals;

(c) what language the appeal can be in; and

(d) how the Tribunal adds parties.

Notice of Appeal

How to appeal a reconsideration decision to the General Division

24 (1) To appeal a reconsideration decision, an appellant must file a notice of appeal with the Tribunal’s General Division. The notice must include

(a) the appellant’s full name;

(b) the appellant’s contact information;

(c) the appellant’s reasons for appealing;

(d) the identifying number referred to in section 24(2); and

(e) a copy of the reconsideration decision or the date of the reconsideration decision.

Identifying number

(2) The identifying number is the number that the Tribunal asks for on its website. The number may be

(a) a social insurance number;

(b) a Canada Revenue Agency business number; or

(c) any other identifying number that the Tribunal asks for.

When to file the notice of appeal

(3) The appellant must file the notice of appeal by the deadline set out in section 52 of the Department of Employment and Social Development Act.

Confirming the notice of appeal was received

(4) The Tribunal notifies the appellant when it receives their notice of appeal.

Notifying an employer about an Employment Insurance appeal

25 The Tribunal notifies an appellant’s employer or former employer about an Employment Insurance appeal at the General Division if the appeal is about one of the following situations:

(a) failing to take advantage of an opportunity for, apply for or accept suitable employment under section 27 of the Employment Insurance Act, if the reasons are work-related;

(b) losing or being suspended from an employment because of misconduct under section 30, 31 or 33 of the Employment Insurance Act;

(c) voluntarily leaving an employment under section 30 or 32 of the Employment Insurance Act, if the reasons are work-related; or

(d) a labour dispute under section 36 of the Employment Insurance Act.

How to appeal a General Division decision to the Appeal Division

26 (1) To appeal a General Division decision, an appellant must file an application for permission to appeal with the Tribunal’s Appeal Division. The application must include

(a) the appellant’s full name;

(b) the appellant’s contact information;

(c) the appellant’s reasons for appealing; and

(d) a copy of the General Division’s decision, the date of the General Division’s decision or the General Division file number.

When to file the application

(2) The appellant must file the application for permission to appeal by the deadline set out in section 57 of the Department of Employment and Social Development Act.

Confirming the application was received

(3) The Tribunal notifies the appellant when it receives their application for permission to appeal.

Late Appeal

How to ask for more time

27 (1) An appellant who files a notice of appeal or an application for permission to appeal after the deadline must explain why they are late. They must file the explanation with the Tribunal.

Deciding to give more time to appeal

(2) The Tribunal gives more time to appeal if the appellant has a reasonable explanation for why they are late. The Tribunal decides whether to give more time without asking the other parties for arguments.

Language of the Appeal

Choosing English or French

28 A party may choose whether they want the appeal to be in English or French. This rule does not apply to the Minister or the Commission.

Documents not in English or French

29 (1) A party who wants to file a document that is not in English or French must

(a) get the document translated into English or French; and

(b) file the translation with the document.

Asking for a translation of a document filed by the Minister or Commission

(2) If the Minister or Commission files a document that is not in a party’s chosen language for the appeal, the party may ask the Tribunal for a translation of the document in that language.

Filing the translation

(3) If a party asks the Tribunal for a translation, the Minister or Commission must get the document translated unless the document came from the party. The Minister or Commission must file the translation with the Tribunal.

What to include with translated documents

(4) If a party files a translation with the Tribunal, the party must include the following information:

(a) the translator’s full name;

(b) the translator’s contact information; and

(c) a statement from the translator that the translation is accurate.

If a party needs an interpreter

30 (1) A party must notify the Tribunal as soon as possible if they or any other participant needs an interpreter to translate what people say at an oral hearing or conference.

Tribunal will provide an interpreter

(2) The Tribunal provides an interpreter if a party asks for one.

Added Parties

When the Tribunal automatically adds a party

31 (1) The Tribunal must add a person as a party to an appeal in the following situations:

(a) when the Minister notifies the Tribunal of that person under section 65 of the Department of Employment and Social Development Act; and

(b) when an employer is appealing a reconsideration decision about that person’s entitlement to benefits under the Employment Insurance Act.

Other situations when the Tribunal could add a party

(2) The Tribunal may decide to add any person as a party to an appeal if the person has a direct interest in the decision.

How to ask to be added as a party

(3) A person who wants to be added as a party to an appeal must file a request with the Tribunal. The request must include

(a) their full name;

(b) their contact information; and

(c) an explanation of how they have a direct interest in the decision.

Deciding without arguments from other parties

(4) The Tribunal decides whether to add a person without asking the other parties for arguments.

Part 6 - Procedures that Apply in Certain Situations

What Part 6 is about

32 This Part sets out various procedures that may apply in the appeal process.

Joining Appeals

When the Tribunal may join appeals

33 The Tribunal may deal with two or more appeals together if

(a) the appeals raise a common question; and

(b) joining the appeals is not unfair to the parties.

Limiting Public Access to the Appeal

If a party wants to limit public access

34 (1) A party may ask the Tribunal to limit public access to an oral hearing or the appeal record if they meet the requirements set out in section 3 of the Social Security Tribunal Regulations, 2022. To do this, the party must file a request with the Tribunal.

What information to include with the request

(2) The party’s request must set out

(a) the serious risk leading the party to ask the Tribunal to limit public access;

(b) the information or documents they want to limit public access to; and

(c) the reasons why there are no reasonable alternative measures to reduce the serious risk.

Holding Conferences

What a conference may cover

35 (1) The Tribunal may invite parties to a conference anytime before a hearing. A conference may include discussions about

(a) the step the appeal is at and the next steps in the appeal process;

(b) the issues in the appeal;

(c) the Tribunal’s authority to do or decide something;

(d) the deadlines for filing documents;

(e) ways to settle the appeal without a hearing; or

(f) any other matters.

How a conference takes place

(2) A conference may take place

(a) by phone;

(b) by video or other type of telecommunication; or

(c) in person.

If the conference is a settlement conference

(3) If the Tribunal invites the parties to a settlement conference, all documents related to the conference and all discussions at the conference must not be disclosed. The documents are not part of the appeal record.

Exception

(4) If all parties agree, the documents and discussions may be disclosed and the documents may be included in the appeal record.

If there is a hearing after a settlement conference

(5) The Tribunal member who holds a settlement conference must not hear the appeal unless all parties agree.

Deciding Based on an Agreement

If the parties reach an agreement

36 (1) Parties may ask the Tribunal to make a decision based on an agreement they have reached and signed. To do this, parties must file a request and the agreement with the Tribunal.

Exception

(2) Parties do not need to file a request or the agreement if they reach the agreement at a settlement conference.

Having a Witness Participate

Having a witness at an oral hearing

37 A party may have a witness testify at an oral hearing in the following types of appeals:

(a) an Employment Insurance appeal at the General Division;

(b) an Income Security appeal at the General Division; and

(c) an Income Security appeal at the Appeal Division.

How to notify the Tribunal about a witness in an Income Security appeal

38 (1) If a party wants to have a witness testify in an Income Security appeal, the party must file a notice with the Tribunal by the filing deadline. The notice must include

(a) the witness’s full name;

(b) the relationship between the party and the witness; and

(c) the language the witness will use to testify.

Other information to include about certain witnesses

(2) If a witness is testifying as an expert or for the Minister, the notice must also include the following:

(a) the witness’s résumé; and

(b) a list of the documents filed with the Tribunal that the witness will testify about or a summary of what the witness will testify about.

Exception

(3) If a party wants to testify, they do not need to file a notice.

Handling Late Evidence

If a party files evidence after a deadline

39 (1) The Tribunal must not consider any evidence that a party files after a filing deadline set by the Tribunal or these Rules unless it gives the party permission to use that evidence.

What factors the Tribunal considers

(2) When deciding whether to give a party permission, the Tribunal must consider any relevant factor. For example, the Tribunal considers whether

(a) the evidence is relevant;

(b) the evidence is new;

(c) the party could have filed the evidence earlier;

(d) giving permission would be unfair to a party; and

(e) giving permission would cause delays.

Deciding without arguments from other parties

(3) The Tribunal decides whether to give permission without asking the other parties for arguments unless fairness requires the Tribunal to ask.

Rescheduling a Hearing

Asking to reschedule a hearing

40 (1) A party may ask the Tribunal to reschedule a hearing. The Tribunal must reschedule the hearing when the party meets the following conditions:

(a) they are asking for the first time;

(b) they ask at least five business days before the hearing; and

(c) they are available for a hearing within two weeks of the original hearing date.

Explaining why the hearing needs to be rescheduled

(2) If a party wants to reschedule a hearing but does not meet the conditions set out in section 40(1), the party must file a request with the Tribunal. The request must explain why they need the hearing rescheduled.

Rescheduling for fairness reasons

(3) The Tribunal may reschedule the hearing only if it is necessary for a fair hearing. The Tribunal decides whether to reschedule without asking the other parties for arguments unless fairness requires the Tribunal to ask.

Withdrawing an Appeal

How to withdraw an appeal

41 An appellant may withdraw their appeal. An appellant may do this by notifying the Tribunal anytime

(a) before the hearing ends, when there is an oral hearing; or

(b) before the Tribunal gives its decision, when there is a hearing in writing.

Part 7 - Income Security Appeal Process

What Part 7 is about

42 This Part sets out specific rules for Income Security appeals at the General Division and Appeal Division.

Income Security Appeals at the General Division

Filing the reconsideration file

43 (1) The Minister must file the reconsideration file with the Tribunal within 20 days after the day the Minister receives a copy of the notice of appeal.

What to include with the reconsideration file

(2) The reconsideration file must include a copy of the following:

(a) the application that led to the reconsideration request;

(b) the reconsideration request;

(c) the reconsideration decision; and

(d) all other relevant documents, including the following, if applicable:

(i) the notification referred to in section 46 or 46.1 of the Canada Pension Plan Regulations,

(ii) a document that sets out the information referred to in section 54(2) of the Canada Pension Plan Regulations,

(iii) the notice referred to in section 60(7) of the Canada Pension Plan, and

(iv) the notice referred to in section 16 or 24 of the Old Age Security Act.

Sending filing deadlines

44 (1) The Tribunal must send the parties the deadlines for filing evidence, arguments or any other documents.

If a party is filing evidence, arguments or other documents

(2) Parties must file any evidence, arguments or other documents by the deadlines.

Changing the deadlines

(3) The Tribunal may change the filing deadlines if it considers the change necessary. The Tribunal must then send the parties the new deadlines.

Two-year limit

(4) The Tribunal must not set a filing deadline that falls more than two years after the appellant filed the notice of appeal unless there are exceptional circumstances.

Income Security Appeals at the Appeal Division

Asking for more information — permission to appeal

45 (1) The Tribunal may ask an appellant for more information before it decides whether to grant permission to appeal a General Division decision.

Deciding without arguments from other parties

(2) The Tribunal decides whether to grant permission to appeal without asking the other parties for arguments.

Sending filing deadlines

46 (1) If it grants permission to appeal, the Tribunal must send the parties the deadlines for filing evidence, arguments or any other documents for the appeal.

If a party is filing evidence, arguments or other documents

(2) Parties must file any evidence, arguments or other documents by the deadlines.

Changing the deadlines

(3) The Tribunal may change the filing deadlines if it considers the change necessary. The Tribunal must then send the parties the new deadlines.

Part 8 - Employment Insurance Appeal Process

What Part 8 is about

47 This Part sets out specific rules for Employment Insurance appeals at the General Division and Appeal Division.

Employment Insurance Appeals at the General Division

Filing the reconsideration file

48 (1) The Commission must file the reconsideration file with the Tribunal within seven business days after the day the Commission receives a copy of the notice of appeal.

What to include with the reconsideration file

(2) The reconsideration file must include a copy of the following:

(a) the reconsideration request;

(b) the reconsideration decision;

(c) all other relevant documents; and

(d) a document that sets out the Commission’s arguments, if it has any.

If a party is filing evidence

49 Parties must file any evidence before the hearing ends.

Asking the Commission to investigate and report

50 The Tribunal may ask the Commission to investigate and report on any question the Tribunal has related to a claim for benefits. The Tribunal may do this anytime before giving its decision.

Employment Insurance Appeals at the Appeal Division

Asking for more information — permission to appeal

51 (1) The Tribunal may ask an appellant for more information before it decides whether to grant permission to appeal a General Division decision.

Deciding without arguments from other parties

(2) The Tribunal decides whether to grant permission to appeal without asking the other parties for arguments.

Deadline for filing arguments

52 (1) If the Tribunal grants permission to appeal, the parties must file any arguments no more than 45 days after the day the Tribunal grants permission.

Deadline for filing arguments — hearing in writing

(2) When there is a hearing in writing, the Tribunal must give parties 15 days to file any arguments in response to another party’s position.

Part 9 - Hearing and Decision

What Part 9 is about

53 This Part sets out when an oral hearing may take place without a party. It also sets out when the Tribunal must give its decision.

Hearing details

54 If there will be a hearing, the Tribunal must send the parties a notice that sets out the hearing details.

When an oral hearing may take place without a party

55 An oral hearing may take place without a party if the Tribunal is of the opinion that the party received the notice of hearing.

When the Tribunal gives its decision

56 The Tribunal must give its decision as soon as possible after the hearing. The Tribunal must give reasons for its decision.

Part 10 - Transitional Provisions

Definitions

57 The following definitions apply in this Part.

former Act means the Department of Employment and Social Development Act as it read immediately before the day these Rules come into force. (ancienne loi)

former Regulations means the Social Security Tribunal Regulations as they read immediately before the day these Rules come into force. (ancien règlement)

How these Rules apply to ongoing appeals

58 Subject to sections 59 to 61, these Rules apply to appeals that are ongoing on the day these Rules come into force.

Exception for ongoing Income Security appeals at the General Division

59 (1) Sections 43, 44 and 54 of these Rules do not apply to Income Security appeals at the General Division that are ongoing on the day these Rules come into force. For these appeals, sections 26 to 28 of the former Regulations continue to apply.

Exception for ongoing Income Security appeals at the Appeal Division

(2) Sections 37 to 39, 45, 46 and 54 of these Rules do not apply to Income Security appeals at the Appeal Division that are ongoing on the day these Rules come into force. For these appeals, sections 41 to 43 of the former Regulations continue to apply.

Exception for appeals of summary dismissal decisions to the Appeal Division

60 Sections 37 to 39, 45, 46, 51, 52 and 54 of these Rules do not apply to appeals of summary dismissal decisions made under section 53 of the former Act. For these appeals, sections 34 to 37 of former Regulations continue to apply.

Exception for ongoing applications to rescind or amend a decision

61 (1) Sections 37 to 39, Parts 7 and 8 and section 54 of these Rules do not apply to applications made under section 66 of the former Act that are ongoing on the day these Rules come into force. For these applications, sections 47 and 48 of the former Regulations continue to apply.

Exception for appeals of rescind or amend decisions to the Appeal Division

(2) Sections 37 to 39, Parts 7 and 8 and section 54 of these Rules do not apply to appeals of decisions made under section 66 of the former Act. For these appeals, sections 41 to 43 of the former Regulations continue to apply.

Part 11 - Coming into Force

When these Rules start to apply

62 These Rules come into force on the day Division 20 of Part 4 of the Budget Implementation Act, 2021, No. 1 comes into force, but if they are registered after that day, they come into force on the day they are registered.

Regulatory Impact Analysis Statement

(This statement is not part of the Regulations.)

Executive summary

Issues: Since 2018, the Social Security Tribunal of Canada (SST) has prioritized a client-centric approach to how it manages its appeal process, with a focus on access to justice. Accessible, flexible and easily understood rules of procedure are key to facilitating access to justice.

Division 20 of the Budget Implementation Act, 2021, No. 1 (BIA) includes amendments to the Department of Employment and Social Development Act (DESDA), the SST’s enabling legislation. The amendments include a power for the Chairperson of the SST to make rules of procedure with the approval of the Minister.

The proposed Social Security Tribunal Rules of Procedure (Rules) will replace the existing, complex and legalistic Social Security Tribunal Regulations (SST Regulations) with flexible and more client-centric procedures for appeals and applications before the Tribunal.

Description: The Rules are intended to govern appeals before the SST in a way that helps parties:

  • understand the appeal process;
  • fully participate in their appeal, whether or not they have a professional representative;
  • know what to expect; and
  • know what may be expected of them.

Rationale: The SST is an administrative tribunal that makes decisions on social security appeals. In the spirit of facilitating access to justice and supporting the SST’s client-centric model and culture, it is necessary to have rules of procedure that are easy for Canadians to understand and navigate and that also provide flexibility.

There is strong stakeholder support for rules that are written in plain language, that are flexible in their operation, and that are developed through a client-centric approach. The proposed rules intend to meet these needs.

No additional costs are expected as the proposed Rules would replace the current SST Regulations.

Issues

The SST was created in 2013. It replaced four legacy tribunals. From the outset, the SST inherited a backlog and its procedures were legalistic and complex. The SST faced public criticism for not being accessible to Canadians and taking too long to decide cases.

In 2017, the Minister of Families, Children and Social Development announced that the SST would undergo a third-party review. A consulting firm, KPMG, was engaged to undertake the review. Its goal was to assess whether the SST was meeting the needs of Canadians and delivering its mandate.

The 2018 KPMG review found that the SST needed to change how it delivered its services. The KPMG report laid out a blueprint for change. A dominant theme in its recommendations was the need to move to a client-centric culture at the SST.

Since 2018, the SST has responded and shifted to a client-centric approach. Its processes are designed with a focus on the people it serves, facilitating access to justice and being transparent about its program performance.

User-centered design is at the heart of how SST manages the appeal process. This is particularly important at the SST because over 70% of the people who file appeals are self-represented. They are some of the most vulnerable Canadians.

Rules of procedure govern how a tribunal manages its processes. In the case of the SST, the rules need to respond to the real-life needs of the people who appeal entitlement to benefits that can have a profound effect on their financial security and well-being.

The SST Regulations that appellants currently have to follow are too complex for most to navigate. They make heavy use of legal terminology and prescribe cumbersome procedures. The proposed Rules are written in plain language, are more accessible for self-represented parties, and create simpler processes.

Background

The SST is an independent administrative tribunal that decides appeals regarding benefits under the Employment Insurance Act, the Canada Pension Plan, and the Old Age Security Act. The general purpose of administrative tribunals is to be less formal, more expeditious and more accessible than the courts.

The legal basis for the SST’s structure and decision-making power comes from Part 5 of the DESDA. The SST is accountable to Parliament through the Minister of Employment, Workforce Development and Disability Inclusion.

Division 20 of the BIA, which received Royal Assent on June 29, 2021, includes amendments to Part 5 of the DESDA. The amendments will give the Chairperson of the SST the authority to make rules of procedure.

The proposed Rules are one element in a package of reforms to the appeal process at the SST. These reforms are being made with a view to making the appeal system more client-centric and simple, quick and fair.

The other changes, led by Employment and Social Development Canada (ESDC), include:

The proposed Rules are intended to replace the current, SST Regulations,which will be repealed.

Objective

The objective of the Rules is to set out modernized rules of procedure that help facilitate access to justice by making proceedings simple, quick and fair. Plain language Rules intend to help parties understand and navigate the appeal process more easily and efficiently. They do this by enabling parties to know what to expect from the appeal process and to know what may be expected of them.

Description

The proposed Rules set out the appeal process in plain language. They would apply to all parties appearing before the Tribunal.

The proposed Rules would include direction on the following matters which are currently not provided in the SST Regulations, including:

  • allowing a party to request an accommodation in the appeal process, in accordance with the grounds set out in the Canadian Human Rights Act;
  • explaining the roles and responsibilities of all participants and the SST in the appeal process;
  • allowing the Tribunal to use different methods of adjudication, like active adjudication;
  • identifying the official language of the appeal and how to request an interpreter;
  • explaining how to notify the Tribunal about a witness;
  • explaining how to ask the Tribunal to limit public access to all or part of a hearing or the appeal record; and
  • explaining how late evidence is handled.

The proposed Rules would also include updates to procedures currently provided in the SST Regulations. The changes would make them more client-centric. They include:

  • simplifying the filing requirements for starting an appeal;
  • eliminating duplication in the regulations on holding conferences;
  • setting out a more client-centric approach to late appeals;
  • clarifying the procedures related to adding a person as a party;
  • explaining how to join related appeals and how to withdraw an appeal; and
  • simplifying the approach to rescheduling a hearing (adjournments).

At the General Division Employment Insurance, the proposed Rules would:

  • clarify that appellants have to file any evidence and written submissions they want the SST to consider before the end of the hearing.

At the Appeal Division Employment Insurance, the proposed Rules would:

  • align the process with the SST’s actual procedures for when a notice of hearing is sent;
  • eliminate the rarely-used option of filing a notice if a party doesn’t want to file submissions; and
  • provide parties with a chance to reply to what the other party submitted if a hearing in writing is held. 

At the General Division Income Security, the proposed Rules would:

  • eliminate the notice of readiness process currently in the Regulations. This would simplify the process for appellants and reduce the burden that parties experience with readiness; and
  • set out a more flexible approach for the Tribunal to notify parties of the filing deadlines within a maximum of a two-year period.

At the Appeal Division Income Security, the proposed Rules would:

  • reflect new procedures needed because of the amendments to the DESDA that will provide, once permission to appeal is granted, that the appeal will be heard as a new proceeding (de novo). For example, parties will be able to file evidence (including witness testimony); and
  • set out a flexible approach for the Tribunal to notify the parties of the filing deadlines, if permission to appeal is granted.

Regulatory development

Consultation

The SST’s objective was to develop rules with a user-centred focus. To do this, the SST engaged stakeholders early in the process. The SST’s stakeholder tables (Employment Insurance Appeals Consultative Committee and the Income Security Appeals Consultative Committee) as well as an extended group of additional diverse stakeholders were invited to participate in consultation sessions.

The SST held three virtual consultation sessions in July 2021: a general session, an Employment Insurance session, and an Income Security session.

The SST invited 360 stakeholders to attend, including:

  • disability advocates;
  • legal clinics;
  • Indigenous organizations, legal aid clinics and advocacy groups;
  • plain language experts;
  • representatives in the Income Security and Employment Insurance fields;
  • representatives from the Department of Employment and Social Development Canada; and
  • representatives from the Canada Employment Insurance Commission (the Commission).

Of the 360 stakeholders invited, approximately 120 stakeholders attended the virtual sessions. A separate and subsequent session also took place with representatives from ESDC and the Commission, at the department’s request.

The primary forums for input included:

  • the three virtual sessions where SST leadership and stakeholders discussed ideas for new Rules;
  • a questionnaire to provide written feedback circulated to those who attended the virtual session(s); and
  • a survey posted on the SST website in June 2021 until July 23, 2021. All interested persons were invited to complete it. The survey was also circulated to stakeholders electronically. A total of 53 people completed the survey.

Stakeholder feedback was sought on a selection of important themes including the SST’s approach to the following matters provided in the proposed Rules: late appeals, adjournments, language of the appeal, added parties, withdrawals, and witnesses.

The SST also sought feedback on pain points for claimants (e.g. whether there are provisions that are missing, unclear, or do not work well for claimants).

Feedback demonstrated strong support for the SST’s client-centred and plain language design, including rules that are both general and flexible in nature.

In response to the feedback received and to keep stakeholders informed, in October 2021, the SST:

  • published an overview summarizing the results of the consultations including the Tribunal’s intentions with the proposed Rules;
  • published an overview of who took part in the external survey and what mattered to them; and
  • responded to stakeholder feedback by email.

The proposed Rules reflect what the SST heard and they are now pre-published on the SST’s website for consultation. The consultation process will run for 31days. All interested persons are invited to submit comments, feedback and questions. The SST has also communicated this consultation through its social media accounts (Twitter and LinkedIn) and emails to stakeholders.

Comments received as a result of these consultations will be addressed at the end of the 31-day period, and necessary changes will be made to the proposed Rules before their publication in Part II of the Canada Gazette.

Modern treaty obligations and Indigenous engagement and consultation

Since the proposed Rules are procedural in nature, the SST does not believe that they will have an impact on modern treaty obligations and Indigenous engagement and consultation in Canada. That being said, as indicated above, the SST invited approximately 10 Indigenous organizations and advocates for Indigenous rights to the consultations on the proposed Rules, to solicit their feedback.

Instrument choice

Subsection 48(2) of the DESDA, as amended by section 221 of Budget Implementation Act, 2021, No. 1, states that the Chairperson of the SST may, with the approval of the Minister, make rules respecting the procedures governing proceedings before the Tribunal. Therefore, no other instrument was considered.

Regulatory analysis

Benefits and costs

No additional costs are expected. The proposed Rules would replace the current SST Regulationswith accessible and more client-centric procedures for appeals and applications before the SST.

The Rules are intended to simplify and streamline the SST’s processes.

Benefits include helping parties:

  • understand the appeal process;
  • fully participate in their appeal, whether or not they have a professional representative;
  • know what to expect; and
  • know what may be expected of them.

Additional anticipated benefits include time savings in getting information about the appeal process and navigating the process and possible cost savings for parties in that the Rules are intended to facilitate simple, quick, and fair proceedings.

Small business lens

The small business lens does not apply to this proposal, as there are no incremental costs to small business.

One-for-one rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.

Regulatory cooperation and alignment

It was not necessary for the SST to consider other regulatory cooperation options. The proposed Rules would apply only to parties involved in appeals before the SST which means there is no possibility for there to be regulatory differences or duplicative requirements and processes with other governments.

The proposed Rules are in line with ESDC-led reforms.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that the proposed Ruleswill not result in any environmental impacts; therefore, a strategic environmental assessment is not required.

Gender-based analysis plus

In light of the mandate given to the SST and its shift to a user-centered approach to designing its processes, the proposed Rules have been written for the people who use the SST’s appeal system. They are intended to be responsive to the needs of our vulnerable users including people with disabilities, seniors and unemployed people. Many are without secondary or post-secondary education.

Given its approach to the Rules, the SST does not anticipate that they will have a negative or disproportionate impact on historically disadvantaged or vulnerable groups. On the contrary, they are structured in such a way to equitably enable all users to easily understand and navigate the appeal process so that they can fully participate in their appeal and understand their outcome.

Implementation, compliance and enforcement, and service standards

The proposed Rules will come into force on the same day as Division 20 of the BIA No. 1, 2021 or the day on which they are registered (whichever is later). They will apply immediately to all appeals that are ongoing on the day the proposed Rules come into force subject to certain exceptions for the appeal process specific to:

  • ongoing Income Security appeals at the General Division;
  • ongoing Income Security appeals at the Appeal Division;
  • appeals of summary dismissal decisions to the Appeal Division;
  • ongoing applications to rescind or amend a decision; and
  • appeals of rescind or amend decisions to the Appeal Division.

Once published in Part II of the Canada Gazette, the final version of the new Rules will also be made available on the SST’s website, communicated to stakeholders by email and announced on social media accounts.

Contact

Michelle Normandeau
A/General Counsel
Social Security Tribunal of Canada
Email: SST.RULES-TSS.REGLES@canada.gc.ca

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