How the Social Security Tribunal (SST) works: Responding to the Supreme Court of Canada’s decision in Vavilov
The federal courts can assess the reasonableness of Appeal Division decisions. They look at whether our decisions are based on a logical chain of reasoning and make sense in light of the law and facts. They do this through a process called judicial review. Judicial review is how the courts make sure we’re following the rules.
The SCC said that the courts have to use the reasonableness standard of review when assessing most tribunal decisions, unless legislation (laws from Parliament) says they have to use a different standard of review. The SCC confirmed this approach in a case from 2019 called Canada (Minister of Citizenship and Immigration) v Vavilov (Vavilov).
In the Vavilov decision, the SCC says that it’s important to understand the context in which a tribunal works in order to decide whether a tribunal decision is reasonable. On this page, we explain the context we work in. This information is meant to inform courts, parties who want to challenge our decisions in the courts, and the public about the operating context of the SST .
The SST isn’t a court. We’re an administrative tribunal.
The federal courts can make sure administrative tribunals follow the rules when they decide cases. They do this through a process called judicial review. That’s when a court looks at whether a tribunal decision should be upheld or overturned. To do that, the court uses a specific standard of review. A standard of review is a legal approach to analyzing a decision.
The reasonableness standard of review means that the courts have to look at whether a tribunal has based its decision on a logical chain of reasoning. Tribunal decisions have to make sense in light of the law and the facts.
We’re an independent federal tribunal
You can challenge a government decision made by the Canada Employment Insurance Commission (CEIC) or Employment and Social Development Canada (ESDC) about whether you qualify.
The SST decides whether you can get benefits under these laws:
- Employment Insurance Act
- Canada Pension Plan (CPP)
- Old Age Security Act
We have 2 levels of decision-making: the General Division and the Appeal Division.
If you disagree with our General Division decision, you can appeal to our Appeal Division.
Then, if you disagree with our Appeal Division decision, you can ask a court for judicial review. You can apply to the Federal Court (FC) or Federal Court of Appeal (FCA). It depends on the decision you want reviewed. For example, the FC reviews Appeal Division decisions on permission to appeal.
Most of our hearings are by phone or video (using Zoom). Despite the fact that we have eliminated our backlog and that the number of appeals completed during the year have decreased since 2015-16, we remain a high-volume tribunal. For more on our caseload statistics, see our caseload page.
We’re a specialized tribunal, and we’re independent in making decisions. This means we only make our decisions based on the evidence and the law in each case. No one can tell a member of the SST how to decide a specific appeal. That includes any minister, the government, the chairperson or any vice-chairperson of the SST.
While we’re independent, we’re also fully accountable to Parliament and to the Minister of Employment, Workforce Development and Disability Inclusion. We report our progress to the Minister.
For more on how the SST is different from and works with other organizations in the federal government, see How we work within government.
The laws we rely on
The SST follows certain laws:
- Part 5 of the Department of Employment and Social Development Act sets out our structure and gives us our decision-making powers
- The Social Security Tribunal Regulations set out our rules of procedure (rules about our appeal processes)
Read more about the laws, regulations, policies, and procedures we follow.
The people who come to us are among the most vulnerable people in Canadian society:
- around 68% of claimants over the last 3 fiscal (financial) years represented themselves1
- many have never had a tribunal hearing and aren’t sure how the appeal process works
- over half the people we serve have a high-school education or less
- 7% of hearings held over the last three fiscal years needed interpreters for languages other than English or French2
- most CPP and Old Age Security (OAS) claimants have low income
The following table provides the percentage of appeals received by province and territory and from outside of Canada (see last column), over the last 3 fiscal years3:
Percentage of appeals received by province and territory as well as from outside of Canada, over the last 3 fiscal years
Province or territory / Percentage
Ontario / 45.3
Quebec / 15.3
British Columbia / 10.4
Alberta / 9.1
Nova Scotia / 4.7
New Brunswick / 4.1
Newfoundland / 4.0
Manitoba / 2.8
Saskatchewan / 2.4
Prince Edward Island / 0.7
Yukon / 0.1
Northwest Territories / 0.1
Nunavut / 0.0
Outside of Canada / 1.0
The percentages demonstrate that over the last 3 fiscal years, the largest number of appeals received come from Ontario at 45.3%, followed by Quebec at 15.3%, and British Columbia at 10%.
Approximately 1% of appeals were received from outside of Canada.
In summer 2021, the SST conducted an analysis of the client caseload to better understand key demographics of GD and AD appellants. For information on the parameters and results of this demographic analysis, see Key demographics of Social Security Tribunal appellants.
The appeals we decide matter a lot to the people involved. Because most of our appellants represent themselves, we have a focus on access to justice in how we do our work. For more information, see how we’re helping people access justice at the SST.
If an appeal is about Employment Insurance (EI) benefits, the CEIC is a party to the appeal. If an appeal is about CPP or OAS benefits, ESDC is a party to the appeal. In many appeals at the SST, the role of CEIC and ESDC representatives is to defend their previous decision because they feel that their decision was right. For more information on the parties to appeal at the SST, see How we work within government.
Our members (decision-makers) come from diverse backgrounds. They go through a merit-based recruitment process. This means that only the most competent and qualified people get appointed.
Although approximately 1/3 of our members are lawyers, they don’t need a law degree or legal background.4
The Governor in Council appoints full-time and part-time members for terms that vary in length. For more about how members are appointed, see How we work within government.
Training and professional development
Our members have to be experts in what they do, so we give them in-depth training. We use well‑founded adult learning methodology. We teach members how to:
- thoroughly analyze all the information before them
- apply the law properly
- decide appeals based on the relevant facts and arguments
Our training helps members understand the importance of putting people at the centre of their decision‑making.
We teach members active adjudication techniques. Active adjudication is about making the appeal process accessible and understandable for all parties. It means that members work closely with the parties to guide them through the hearing. They explain what happens in a hearing, ask open-ended questions, and repeat back to parties what they’ve heard.
Members also attend professional development sessions throughout their time with us.
We track and evaluate our members’ performance regularly.
Our evaluations focus on:
- how they prepare for their hearings
- how they conduct their hearings (this includes active adjudication)
- how they explain their decisions in writing (this includes the use of plain language)
- how productive they are
We also evaluate how well members make their decisions. The evaluation is not based on outcomes.
The SST also has a Code of Conduct for members. It describes how members should behave as fair and impartial decision-makers. It also clearly explains what we expect of them.
If you feel that a member didn’t follow the Code of Conduct, you can make a complaint through our complaint process.
How our members make their decisions
Our members make decisions independently based on the law and the facts of each case.
Despite this independence, the law tells us we should be consistent in how we make our decisions as an administrative tribunal. Vavilov confirmed this.
Being consistent is especially important because we have about 80 members and make 5,000 to 7,000 decisions a year. To promote consistency, we follow the rules from the SCC’s 1990 decision in IWA v Consolidated-Bathurst Packaging Ltd., and other cases related to it.
While no one can tell a member how to decide an individual case, we do encourage members to talk about their work with one another. This makes for better quality and more consistent decisions. Each section of the SST has a closed virtual space just for members where they can talk and work together. Each section also works on identifying areas where decision-making is inconsistent, and where it would help to have more training for members on an issue.
Our policies guide our members while respecting their independence. They improve the quality and accessibility of justice for Canadians and create guidelines for the SST in areas where there may be a gap in the laws.
Here are some things we do:
- we have a voluntary reasons review service for members’ draft decisions
- it encourages consistency across all of our decisions
- we make our hearings and appeal records open to the public while respecting privacy
- public access helps people understand what we do and keeps us accountable
- we’re committed to making special arrangements so everyone can
- have equal access to our processes
- participate fully in our proceedings
How our members explain their decisions
Legislation says we have to explain to claimants and other parties in writing the reasons for our decisions. Writing decisions in plain language is an important part of helping people access justice because it makes things clearer for all parties.
When writing their decisions, members aim to:
- write at a Grade 9 reading level
- start with a clear overview
- clearly indicate what issues they have to decide and structure their decisions around them
- use the point-first writing approach (making the most important information easy to find)
- use headings specific to the case
We want claimants and other parties to understand why members reach their decisions. The idea is to write in a way that walks parties through the decision‑making process.
Where to learn more
We hope this clarifies how the SST works. Understanding our context will help the courts assess the reasonableness of our decisions on judicial review.
Learn more about the ways we’re putting people at the centre of our justice service on our Access to justice page and in our annual progress reports.
Contact us if you have any questions about the context we work in.